Opinion
No. 39144.
Filed January 18, 1974.
Post Conviction: Constitutional Law. In the absence of a violation of a constitutional right, no relief may be had under the Post Conviction Act.
Appeal from the District Court for Lancaster County: WILLIAM C. HASTINGS, Judge. Affirmed.
Charles E. Wright, for appellant.
Clarence A. H. Meyer, Attorney General, and Chauncey C. Sheldon, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH McCOWN, NEWTON, and CLINTON, JJ.
Seth E. Blackwell moved the District Court for post conviction relief on two grounds. First, at the time of the jury trial that led to his conviction and sentence he was mentally incompetent to stand trial. Second, isolation and restraint imposed upon him during the jury trial violated Article I, sections 3 and 11, of the Nebraska Constitution, Bill of Rights, and the Sixth and Fourteenth Amendments to the Constitution of the United States. After an evidentiary hearing the court overruled the motion, and Blackwell appeals.
The District Court might properly find as follows. During the period of 1 1/2 months immediately prior to the jury trial the behavior of Blackwell was extraordinary. He removed his handcuffs by his own strength, barricaded his cell, destroyed "everything in the room," and assaulted his lawyer. He was gassed severely with tear gas.
At the jury trial and upon request of defense counsel, Blackwell was seated 5 feet away from the counsel table, 3 feet away from the second chair, and between two deputy sheriffs. The request was made because of the tendency in Blackwell for belligerence. Blackwell in conversation with counsel dissented mildly. Two outbursts by him disrupted the trial. He possessed the opportunity to communicate effectively with his counsel by notifying a deputy sheriff that he wished to speak with counsel. Such notice was conveyed on several occasions. Defense counsel at no time was denied the right to converse with Blackwell during the trial, and they conversed several times. In respect to the seating arrangement no cautionary instruction was given to the jury. The evidence was sufficient to sustain the findings under review in respect to the seating arrangement and the opportunity for effective client-counsel communication beneficial to Blackwell.
In the absence of a violation of a constitutional right, no relief may be had under the Post Conviction Act. State v. Whited, 187 Neb. 592, 193 N.W.2d 268 (1971).
The order denying the post conviction motion was correct.
AFFIRMED.
Adopted by the Court before January 1, 1974.