State v. Davlin

• Citation: 263 Neb. 283,639 N.W.2d 631
• Decision Date: 01 March 2002
• Docket Number: No. S-00-958.,S-00-958.
• Parties: STATE of Nebraska, Appellee, v. Clifford J. DAVLIN, Appellant.
• Court: Supreme Court of Nebraska

639 N.W.2d 631

263 Neb. 283

STATE of Nebraska, Appellee, v. Clifford J. DAVLIN, Appellant.

No. S-00-958.

Supreme Court of Nebraska.

March 1, 2002.

Jerry L. Soucie and Robert W. Kortus, of the Nebraska Commission on Public Advocacy, Lincoln, for appellant.

Don Stenberg, Attorney General, and Martin W. Swanson for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

I. NATURE OF CASE

Clifford Davlin was convicted, pursuant to jury verdicts, of second degree murder and first degree arson. Davlin was found to be a habitual criminal and sentenced to life imprisonment for the murder conviction and 20 to 60 years' imprisonment for the arson conviction, the sentences to be served consecutively. Davlin appeals, claiming errors in the jury instructions, the State's destruction of physical evidence, the admission of expert testimony on the cause of the fire, the exclusion of evidence proffered by Davlin intended to implicate another suspect, and the finding that Davlin was a habitual criminal.

II. BACKGROUND

Tamara Ligenza, also known as Tamara Martin, was found dead in her Lincoln apartment after a fire on September 7, 1993. Ligenza was legally blind and was 6 months pregnant at the time of her death. Ligenza had been living with Davlin, but on September 6, Ligenza told Davlin to leave the apartment. The State adduced evidence at trial which generally indicated that Davlin remained at or near the apartment building on September 6 and into the morning of September 7.

Ligenza was last seen alive, by her roommate, at about 1 a.m. on September 7, 1993. Ligenza lived in a house that had been converted to a duplex with one entrance that led to both apartments. Witnesses who lived in the building testified that they were awakened at approximately 4:30 a.m. by reports of a fire in the building. Davlin was identified as being in the duplex at the time of the fire, staying in the other apartment. Firefighters removed a severely burned body from the bedroom of Ligenza's apartment; the body was later identified by dental records as Ligenza's. An autopsy was performed, and the coroner's physician concluded that Ligenza had been killed by manual strangulation prior to the fire.

Davlin was charged by amended information on March 24, 1997. After a plea in abatement was overruled, Davlin filed an interlocutory appeal that was summarily dismissed by the Nebraska Court of Appeals. See State v. Davlin, 6 Neb.App. xliii (case No. A-97-1094, Mar. 27, 1998), petition for further review overruled 254 Neb. xxviii (May 29, 1998). Trial commenced on March 10, 2000. In addition to the evidence summarized above, the State presented testimony regarding admissions that Davlin allegedly made regarding his responsibility for Ligenza's death. Two of the witnesses lived in the same apartment building as Davlin after the fire, and one was a cellmate of Davlin in late November and early December 1993 when both were incarcerated in Sarpy County on unrelated charges. The State also adduced evidence that an accelerant had been used to set the fire in Ligenza's apartment.

The jury returned guilty verdicts for second degree murder and first degree arson. Davlin's motion for new trial was overruled, and he was sentenced as set forth above. Other factual details will be set forth below as they relate to the issues presented.

III. ASSIGNMENTS OF ERROR

Davlin assigns that the district court erred when it (1) retroactively applied this court's decision in State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), and did not instruct the jury that malice was an essential element of the crime of second degree murder; (2) instructed the jury that an essential element of the crime of second degree murder was that the killing was done "intentionally, but without malice," instead of "premeditation"; (3) failed to provide redress under Neb.Rev.Stat. § 29-1913 (Reissue 1995) because of the State's destruction of evidence required for scientific testing; (4) failed to dismiss the case pursuant to Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), because Davlin's rights under the Due Process Clauses of the state and federal Constitutions were violated by the State's destruction of evidence; (5) failed to instruct the jury that missing evidence could be inferred to be unfavorable to the State; (6) prohibited the introduction of evidence that a third person committed the charged offenses; (7) admitted the testimony of the State's fire experts with insufficient foundation for the evidence; and (8) found Davlin to be a habitual criminal pursuant to Neb.Rev. Stat. § 29-2221(1) (Reissue 1995).

IV. STANDARD OF REVIEW

Whether jury instructions given by a trial court are correct is a question of law. State v. Gartner, ante p. 153, 638 N.W.2d 849 (2002). The meaning of a statute is a question of law. Id. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Id.

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Pruett, ante p. 99, 638 N.W.2d 809 (2002). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). The exercise of judicial discretion is implicit in determinations of relevancy, and a trial court's decision regarding it will not be reversed absent an abuse of discretion. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001). The standard for reviewing the admissibility of expert testimony is abuse of discretion. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).

V. ANALYSIS

1. JURY INSTRUCTIONS

The district court's instruction No. 3 was a step instruction which included instructions regarding first degree murder, second degree murder, and manslaughter. The instruction stated, in part:

Regarding second degree murder, the elements of the state's case are:

(1) That Clifford J. Davlin caused the death of Tamara Ligenza, a/k/a Tamara Martin; and

(2) that Mr. Davlin did so intentionally, but without malice; and

(3) that Mr. Davlin did so on or about September 7, 1993, in Lancaster County, Nebraska.

(a) Retroactive Application of Burlison

Davlin's first assignment of error is that the district court erred in not instructing the jury that malice was an element of second degree murder, thus retroactively applying this court's decision in State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). We recently addressed this issue in State v. Redmond, 262 Neb. 411, 631 N.W.2d 501 (2001), cert. denied ___ U.S. ___, 122 S.Ct. 573, 151 L.Ed.2d 445. We stated:

Under Rogers [v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001)], the U.S. Constitution does not require that retroactive judicial decisions be analyzed with reference to the Ex Post Facto Clause. Instead, a judicial decision interpreting a statute may be applied retroactively unless the decision denies due process by being both unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.

In this case, the change of law in State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), cannot be said to be indefensible. Indefensible is defined as "incapable of being maintained as right or valid" or "incapable of being justified or excused." ... Thus, in a case such as Bouie [v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964),] where a court interprets a statute in a surprising manner that has little in the way of legal support, the interpretation could not be applied retroactively. Our decision in Burlison was not such a case.

The basis of the Burlison decision was the plain language of [Neb.Rev.Stat.] § 28-304 [(Reissue 1995)]. We recognized in Burlison that it was improper to read the element of malice into that statute. In Nebraska, all crimes are statutory, and no act is criminal unless the Legislature has in express terms declared it to be so.... It is not within the province of the courts to read a meaning into a statute that is not there, nor read anything direct and plain out of a statute.... Thus, as we stated in Burlison, our prior decisions interpreting § 28-304 to include malice as a necessary element of the crime of second degree murder were clearly erroneous. Our decision in Burlison was in no manner indefensible.

Furthermore, our decision in Burlison was not entirely unexpected. Although Burlison overruled a line of cases, the prior cases were not without obvious disagreement. Further, this court's interpretation of § 28-304 before Burlison was in direct contradiction to the plain meaning of the statute. But regardless of whether the Burlison decision was or was not unexpected, it certainly was not indefensible. Thus, under the test set out in Rogers v. Tennessee, , 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), a retroactive application of Burlison does not violate due process.

(Emphasis in original.) (Citations omitted.) Redmond, 262 Neb. at 420-21, 631 N.W.2d at 508.

Davlin argues that our decision in Redmond, supra, was in error because we failed to determine that our decision in Burlison, supra, was both unexpected and indefensible. In the first place, our decision in Redmond clearly states that our decision in Burlison was not unexpected, because the line of cases that Burlison overruled was not without obvious disagreement and was in direct contradiction to the plain language of Neb.Rev.Stat. § 28-304 (Reissue 1995).

Second, Davlin misreads Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). Rogers establishes that a judicial decision interpreting a statute may "not...