State v. Dubray
| Decision Date | 07 October 2016 |
| Docket Number | No. S-15-1032.,S-15-1032. |
| Citation | 885 N.W.2d 540,294 Neb. 937 |
| Parties | State of Nebraska, appellee, v. Dominick L. Dubray, appellant. |
| Court | Nebraska Supreme Court |
Dominick L. Dubray, pro se.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
This is an appeal from the district court's denial of a petition for postconviction relief by appellant, Dominick L. Dubray. Dubray was convicted in 2012 of two counts of first degree murder and two counts of use of a weapon to commit a felony. The district court granted the State's motion to dismiss the postconviction petition without an evidentiary hearing. Dubray appeals from this dismissal. We conclude that either his claims are procedurally barred, his claims fail to allege sufficient facts to demonstrate a violation of his constitutional rights, or the record and files affirmatively show he is entitled to no relief. We affirm the judgment of the district court.
The facts of this case are set out in detail in our opinion from Dubray's direct appeal of his convictions.1 Dubray lived with Catalina Chavez. Mike Loutzenhiser was Chavez' stepfather, and his son lived with Dubray and Chavez.
On February 10, 2012, in Alliance, Nebraska, Dubray, Chavez, and Loutzenhiser were drinking alcohol at a club and at another person's home from around 8 p.m. to 6 a.m. the next morning. Loutzenhiser, who lived in Scottsbluff, Nebraska, was visiting for the weekend. About 6 a.m., Dubray, Chavez, and Loutzenhiser walked back to the house where Dubray and Chavez lived.
At 6:49 a.m., Dubray called his cousin Carlos Reza and told him that he had two dead bodies in the house and was going to kill himself. He said, “ ‘I love you, Bro. Take care of my daughter.’ ” Reza immediately drove to Dubray's house and arrived minutes later.
Reza entered through the front door and saw Loutzenhiser's dead body in the living room, with a lot of blood underneath him. He found Dubray lying motionless on the floor in the bedroom. Reza began screaming for Dubray, who got up in response to Reza's yelling and went into the kitchen with him. Dubray stood with his hands on the kitchen table, crying and shaking his head. Dubray told Reza that Chavez was going to leave him. Dubray said, “ ” He showed Reza a stab wound to his chest and said, “ ‘I tried to kill myself right here.’ ” Dubray grabbed a clean knife off of the kitchen counter and said, “ ‘I'm going to kill myself.’ ” He came back to the kitchen table, where he and Reza sat down. Dubray set the kitchen knife down at his side.
About 5 to 10 minutes after Reza arrived, another cousin, Marco Dubray (Marco), came to the house. When Marco saw Loutzenhiser's body, he asked what happened. Dubray said, “ ” “ ‘I can't believe what I have done,’ ” and “ ” Reza hugged Dubray. Dubray then said, “ ”
Reza and Marco left the house and called their uncle Lonnie Little Hoop for help, telling him that Dubray was trying to kill himself. While waiting outside for Little Hoop to arrive, Reza heard a loud scream coming from the bedroom that sounded as if it came from Dubray. Little Hoop arrived, went into the house with Reza, and found Dubray lying in the bedroom between the bed and the wall. Dubray had a knife sticking out of his back. When Little Hoop called out to him, Dubray began moving and tried to pull himself up onto the bed. Little Hoop told him not to move and directed Reza to call for an ambulance. When Dubray tried to sit up, Little Hoop noticed Chavez' dead body beneath him. Dubray faced Little Hoop and said, “ ” Reza flagged down a nearby police cruiser. The police requested an ambulance and then went to the house.
When the police entered the home, they found Loutzenhiser's body with multiple stab wounds and no signs of life. One officer testified that Loutzenhiser's neck was nearly severed. The police then entered the bedroom and found Dubray and Chavez' body. Dubray still had a knife in his back. He was lying between the bedroom wall and the bed, on top of Chavez' body. Dubray began to move and moan and pulled the knife out of his back. He was then taken to a local hospital.
Police found three knives at the scene: one underneath Dubray and next to Chavez' body between the bed and bedroom wall, a second that was found on the bed, and a third that had been in Dubray's back. A knife block was located on the kitchen counter. There were four open slots in the knife block. The three knives recovered by police appeared to be kitchen knives that matched the knives remaining in the knife block.
Dubray was treated at the local hospital's trauma center and then transferred to a hospital in Denver, Colorado, for further care. Dubray had 17 lacerations or stab wounds. After being treated and examined, it was determined that only the stab wound to his chest was life threatening. Most of his wounds were superficial. When in the hospital in Colorado, Dubray told Reza that he had “fucked up.”
Dubray was tried for two counts of first degree murder. He was also charged with two counts of use of a weapon to commit a felony. He did not testify at trial.
The forensic pathologist who performed the autopsies of the two victims testified that Loutzenhiser had 22 stab wounds. Several of the wounds in his chest were 7 to 9 inches deep, reaching his lungs. Several other stab wounds to Loutzenhiser were in his back. His spinal cord was cut. He also had a defensive wound on his left wrist. The blood flow patterns indicated that many of his wounds were inflicted when he was hunched over. Chavez had 19 stab wounds. Several stab wounds to her neck severed her trachea and esophagus and cut an artery in multiple places. She also had a defensive wound and bruising on her right hand. Other stab wounds were found in the back of her neck and her back. The bloodstains on her clothing indicated that most of her wounds were inflicted after she was on the ground.
The surgeon who treated Dubray testified that Dubray had a total of 17 wounds, most of which were superficial “ ‘slash wound [s].’ ” Only three wounds were potentially life-threatening stab wounds : one in his abdomen and two in his chest. After further exploration by the surgeon, only one was determined to be life threatening: a stab wound to his chest.
Based upon the physical evidence of the number and force of the stab wounds, the State argued that the killings were premeditated and not in self-defense. The State also argued against the defense's theory of self-defense, because most of Dubray's wounds were superficial, which supported the State's theory that they were self-inflicted.
Dubray's defense was based on a theory of self-defense or manslaughter based upon a “sudden quarrel.” Dubray's family members testified that he had bruising on his face when he was in the hospital. The defense claimed that Dubray's 17 stab wounds or lacerations showed that he must have acted in self-defense.
Dubray was convicted of both counts of first degree murder and both counts of use of a weapon to commit a felony. He was sentenced to two life sentences for the murder convictions and 30 to 40 years' imprisonment for each of the convictions for use of a weapon to commit a felony, all to run consecutively. After his convictions, Dubray brought a direct appeal.
Dubray's assignments of error on direct appeal were categorized by this court as trial court error, prosecutorial misconduct, and ineffective assistance of counsel.2
Dubray claimed ineffective assistance of counsel on the basis of several alleged errors of his trial counsel. All of these claims but one were rejected, and the convictions were affirmed.
We concluded that Dubray's claim that he was prejudiced because his trial counsel failed to call Megan Reza (Megan) as a witness could not be decided on direct appeal. Dubray contended that Megan would have testified that Chavez kept a knife hidden under her mattress for her protection. Dubray claimed this testimony would have helped to negate the premeditation charge and would have supported his theory of self-defense or sudden quarrel. We declined to address the issue on direct appeal. We affirmed Dubray's convictions and sentences.
Dubray filed a timely petition for postconviction relief. He alleged various claims of actual innocence, ineffective assistance of trial counsel, ineffective assistance of appellate counsel, trial court error, and prosecutorial misconduct.
The State moved to dismiss Dubray's petition without an evidentiary hearing, on the bases that the petition failed to allege sufficient facts which would constitute a constitutional violation of his rights, that the claims were procedurally barred, that the case file and record affirmatively showed that Dubray was not entitled to relief, and/or that the petition alleged only conclusions of fact or law. The district court sustained the State's motion.
Dubray asserts that the district court erred when it dismissed his petition for postconviction relief without an evidentiary hearing. More specifically, he asserts that the court erred in dismissing without an evidentiary hearing his claims of (1) actual innocence, (2) ineffective assistance of trial counsel, (3) ineffective assistance of appellate counsel, (4) error by the trial court, and (5) prosecutorial misconduct.
In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege...
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