State v. Benish, No. A-07-860 (Neb. App. 10/28/2008)

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State of Nebraska, Appellee, v. Richard L. Benish, Appellant.

No. A-07-860.

Court of Appeals of Nebraska.

Filed October 28, 2008.

Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.

Robert Wm. Chapin, Jr., for appellant.

Jon Bruning, Attorney General, and George R. Love, for appellee.

INBODY, Chief Judge, and MOORE and CASSEL, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

CASSEL, Judge.

INTRODUCTION

A jury convicted Richard L. Benish of being an accessory to a felony, and the court found him to be a habitual criminal. On appeal, Benish challenges the denial of his motions to discharge, suppress his statements, and recuse; his counsel's motion to withdraw; and his motion for new trial. He further claims that his counsel provided ineffective assistance and that the court erred in denying his request to review his presentence report and in using defective convictions for enhancement purposes. We conclude that Benish's assignments of error lack merit, and we therefore affirm.

BACKGROUND

On March 17, 2004, the State filed an information charging Benish with murder in the first degree and robbery, which was later amended to charge Benish with being an accessory to a felony and a habitual criminal.

On February 25, 2005, Benish filed a motion to discharge. The district court stated that on September 2, 2004, it found good cause to continue the trial until February 28, 2005, for the appointment of new counsel. The court overruled the motion. Benish appealed to this court, case No. A-05-318, and his brief argued only that his statutory right to a speedy trial had been violated. The State filed a motion for summary affirmance and argued that we did not need to consider whether good cause existed because Benish filed a discovery motion on July 2, 2004, and the motion had not been disposed either by court ruling or withdrawal in writing or on the record. We sustained the State's motion on January 4, 2006.

On March 2, 2006, the district court held a hearing and heard Benish's motion to recuse. Benish testified that he filed a complaint against the judge with the Judicial Qualifications Commission and that he had communicated with members of the Counsel for Discipline. The judge stated that he was unaware of a complaint against him, that he would disregard it, and that he "didn't find any articulation of any bias or grounds for recusal." The court denied the motion. The court's March 2 docket entry stated that Benish's pending motion for discovery was granted. Trial was set to begin March 8.

On March 7, 2006, the court held a hearing on Benish's second motion to discharge, which Benish's counsel stated would be filed later that day. In support of Benish's motion, his counsel made the same arguments as those in support of the first motion to discharge. The court denied Benish's motion, and he appealed to this court, case No. A-06-400. Benish assigned that the district court erred in denying his motion to discharge based upon both his statutory and constitutional rights to a speedy trial and that the court erred in failing to recuse itself. On April 10, 2007, we issued a memorandum opinion and determined that Benish's statutory right to a speedy trial was not violated, that he did not preserve a constitutional right to speedy trial claim, and that the district court's denial of the motion to recuse was not a final, appealable order.

Following a jury trial, the court accepted the jury's verdict finding Benish guilty of accessory to a felony. On July 5, 2007, the court held a sentencing hearing and Benish argued his motion for new trial. Benish's counsel renewed his motion to withdraw. The court denied the motion for new trial and Benish's motion for arrest of judgment. Following an enhancement hearing, the court found Benish to be a habitual criminal and sentenced him to 10 to 30 years' imprisonment.

Benish timely appeals.

ASSIGNMENTS OF ERROR

Benish assigns 11 errors. He alleges, consolidated, restated, and reordered, that the court erred in (1) failing to grant his motion to discharge based upon his constitutional and statutory rights to a speedy trial, (2) failing to grant a motion to suppress his statements, (3) not permitting counsel to withdraw, (4) denying him the right to review his presentence report prior to sentencing, (5) allowing a conviction to be used for enhancement purposes, (6) failing to recuse itself, and (7) failing to grant his motion for a new trial. Benish also raises the issue of ineffective assistance of counsel.

STANDARD OF REVIEW

As a general rule, a trial court's determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Sommer, 273 Neb. 587, 731 N.W.2d 566 (2007).

A trial court's ruling on a motion to suppress, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, will be upheld unless its findings of fact are clearly erroneous. State v. Gorup, 275 Neb. 280, 745 N.W.2d 912 (2008). A district court's finding and determination that a defendant's statement was voluntarily made will not be set aside on appeal unless this determination is clearly erroneous. State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).

A trial court's decision to dismiss appointed counsel is reviewed for an abuse of discretion. State v. Walker, supra.

A motion requesting a judge to recuse himself or herself on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law. State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).

In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Pieper, 274 Neb. 768, 743 N.W.2d 360 (2008).

Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008).

ANALYSIS

Denial of Motion to Discharge.

The speedy trial issue is before us for the third time. Under the law-of-the-case doctrine, the holdings of an appellate court on questions presented to it in reviewing proceedings of the trial court become the law of the case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either expressly or by necessary implication. State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006). The law-of-the-case doctrine operates to preclude a reconsideration of substantially similar, if not identical, issues at successive stages of the same suit or prosecution. Id. Matters previously addressed in an appellate court are not reconsidered unless the petitioner presents materially and substantially different facts. Id. Benish is asking us to once again consider a substantially similar, if not identical, issue concerning his statutory right to a speedy trial. Just as we determined in Benish's second appeal, our decision in Benish's first appeal on this issue is the law of the case. We find no materially and substantially different facts necessitating reconsideration.

Benish also argues that the court erred in denying his motion to discharge based on his constitutional right to a speedy trial. He raised this issue in his second appeal, and we determined that he waived the claim. We noted that his argument in support of discharge was based solely on his statutory right to a speedy trial and that the trial court did not address an alleged violation of the constitutional right. Once again, our holding on this issue is the law of the case, and we will not reconsider the matter.

Motion to Suppress.

Benish argues that the court erred in denying his motion to suppress his statements. He sought to suppress statements made to Det. Kenneth Kanger while in an interrogation room and in police custody on unrelated charges. Benish claims that "[d]uring the first one hour and five minutes statements were received from [Benish] based on questions or comments of Officer Kanger that were incriminating. At no time during that period of time was [Benish] read his rights." Brief for appellant at 39. For purposes of this appeal, we assume without deciding that Benish was in custody.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits the use of statements derived during custodial interrogation unless the prosecution demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007). The special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but, rather, where a suspect in custody is subjected to interrogation. State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006). Statements made in a conversation initiated by the accused or spontaneously volunteered by the accused are not the result of interrogation and are admissible. State v. Rodriguez, supra. Also excluded from the definition of interrogation is a course of inquiry related and responsive to a volunteered remark. Id.

In determining whether the State has shown the admissibility of custodial statements by the requisite degree of proof, an appellate court will accept the factual determination and credibility choices made by the trial judge unless they are clearly erroneous and, in so doing, will look to the totality of the circumstances. See id. Factors to be considered include suspect's age, education, intelligence, prior contact with authorities, and conduct. State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).

The videotape of the interview does not show that Benish was compelled to speak because of interrogation prior to the...