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April 3, 1979


Appeal from the District Court for Lincoln County: Keith Windrum, Judge.

Krivosha, C. J., Boslaugh, McCown, Clinton, Brodkey, White, and Hastings, JJ. Boslaugh, J., Dissenting in part.


1. : Coram Nobis. A writ of error coram nobis reaches only matters of fact unknown to the applicant at the time of judgment and not discoverable by him with reasonable diligence, which fact or facts are of such a nature that, if known to the court, would have prevented entry of the judgment.

2. : Jurors: Burden of Proof. When an improper communication with a juror or jurors is shown to have taken place in a criminal case, a rebuttable presumption of prejudice arises and the burden is on the State to prove that the communication was not prejudicial.

3. : Jurors: Witnesses: Verdicts. Unauthorized communications between jurors and third persons or witnesses during the course of jury deliberations are absolutely forbidden and invalidate the verdict unless their harmlessness is made to appear.

4. Trial: Constitutional Law. A fair trial in a fair tribunal is a basic requirement of constitutional due process.

5. : Juries. It is vital in capital cases that the jury should pass upon the case free from external causes tending to disturb the exercise of deliberate and unbiased judgment. Nor can any ground of suspicion that the administration of Justice has been interfered with be tolerated.

6. Trial: Juries: Evidence: Constitutional Law. The requirement that a jury's verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.

7. Jurors: Testimony: Statutes. Under section 27-606(2), R. R. S. 1943, a juror may testify as to whether extraneous prejudicial information was improperly brought to the jury's attention. No evidence may be received as to the effect of any statement upon a juror's mind, its influence one way or another, or the mental processes of a juror in connection therewith.

8. Constitutional Law: Burden of Proof. Where an error of constitutional dimensions has occurred, the State has the burden of proving beyond a reasonable doubt that such error was harmless.

The opinion of the court was delivered by: Mccown

Erwin Charles Simants filed a petition bearing the caption, "Writ of Error Coram Nobis," in which he sought to set aside his conviction and sentence on each of six counts of murder in the first degree. The petition alleged irregularities and misconduct in connection with the sequestration and deliberations of the jury at trial which were not known to the petitioner or his counsel at the time of his trial, conviction, and sentence. Following a hearing in the District Court for Lincoln County, the court denied the petition for writ of error coram nobis, and the petitioner has appealed.

Erwin Charles Simants was charged with six counts of murder in the first degree. The plea to each count was not guilty by reason of insanity. Trial to a jury began on January 8, 1976, and continued through January 16, 1976. The jury returned a verdict of guilty on all counts on January 17, 1976, and on January 29, 1976, Erwin Charles Simants was sentenced to death by electrocution.

On January 5, 1978, Simants filed the petition in this case alleging that the Lincoln County sheriff, Gordon D. Gilster, was a principal and necessary witness for the State of Nebraska in prosecuting the murder case against petitioner; that during the trial the sheriff visited the motel in which the members of the jury and alternates were sequestered, and conversed, played cards, and associated with members of the jury and alternates. The petition also alleged that during the trial the Judge who presided over the trial visited the motel where the jury was sequestered and may have made communications with members of the jury.

The petition alleged that the petitioner and his attorneys had no knowledge of such actions at the time of trial or sentencing but obtained knowledge by subsequent interviews with members of the jury, and that the facts concerning such conduct, if known to the trial court prior to judgment and sentence, would have prevented the rendition of the judgment. The petition also alleged that the facts constituted a denial of defendant's constitutional rights such as to render the judgment void. The petition prayed that the conviction, judgment, and sentence of death by electrocution be set aside and the petitioner be granted a new trial.

The answer of the State alleged that although the trial Judge was present at the motel on two occasions, he did not discuss the case or attempt to do so. The answer alleged that although the sheriff was present at the motel three times during sequestration, he did not discuss the case nor attempt to do so.

The Judge at the original trial withdrew from this proceeding, and another Judge presided thereafter. Some factual background as to the original trial is necessary in order to put the testimony at the present hearing in perspective. The facts are set out in full in State v. Simants, 197 Neb. 549, 250 N.W.2d 881. The defendant was charged with the mass murder of six individuals on October 18, 1975. The plea of the defendant was not guilty by reason of insanity. There was little, if any, doubt as to all the essential facts of the killings. The critical issue was whether or not the defendant was legally responsible for his actions at the time. Expert witnesses for the State testified that the defendant was legally sane at the time of the murders, while expert testimony for the defendant was that the defendant was not legally sane at the time of the slayings.

Sheriff Gilster testified on two separate occasions during the trial. The sheriff's first appearance as a witness was on January 12, 1976. The sheriff's second appearance as a witness was on January 15, 1976, the next to last day of trial, when he was called as a rebuttal witness. On this occasion he testified principally about the actions of the defendant during his confinement, with particular reference to his mental condition. In answer to a question: "Has there ever been any act of the defendant in your presence which would indicate to you that he might have a mental problem?", the sheriff answered: "No." On cross-examination the sheriff admitted that he was not schooled in determining or looking for those things which would indicate a mental problem, but said that he had observed a number of people in transporting them back and forth from the Nebraska state institution. The sheriff testified that he knew the defendant pretty well because the defendant had been in his jail several times. It should be noted also that the defendant was in the personal custody of the sheriff during trial sessions, and Sheriff Gilster was therefore present in uniform inside the bar of the courtroom throughout the entire trial.

The jury was sequestered from January 8, 1976, until the Conclusion of the case, at the Howard Johnson Motel in North Platte, Nebraska, under the orders of the presiding Judge. The jurors occupied rooms in one wing of the motel that was closed and had two adjoining rooms that were used as recreation rooms. The jurors were fed in a dining room separated from the rest of the restaurant by a folding door partition.

In the present proceeding the trial Judge testified that he went to the motel on two occasions to see that the sequestration orders were being properly carried out. The first visit was on January 8, the first night the jury was sequestered, and the second visit was on the early evening of January 10, when he made an unannounced inspection trip. On each occasion the Judge checked the jurors' accommodations and services and conferred with the motel manager or the bailiffs with respect to arrangements. He had no conversations with jurors except a cursory acknowledgement or ...

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