State v. Davenport
| Decision Date | 26 August 2008 |
| Docket Number | No. A-06-1331.,A-06-1331. |
| Citation | 755 N.W.2d 816,17 Neb. App. 1 |
| Parties | STATE of Nebraska, appellee, v. Ricky R. DAVENPORT, appellant. |
| Court | Nebraska Court of Appeals |
Ricky R. Davenport, pro se.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
In 1993, a jury convicted Ricky R. Davenport of manslaughter, use of a firearm in the commission of a felony, and possession of a firearm by a felon. On direct appeal, we affirmed Davenport's convictions and sentences, and we later affirmed the denial of his motion for postconviction relief. Subsequently, the Nebraska Supreme Court determined in State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002), that a defendant could not be convicted of an intentional crime, such as use of a weapon to commit a felony, when the underlying felony is an unintentional crime, such as manslaughter. Based upon the Pruett decision, Davenport filed a second motion for postconviction relief alleging that he received ineffective assistance of counsel at the trial and appellate levels. The district court denied the motion without an evidentiary hearing. We affirm.
The State charged Davenport with second degree murder, use of a firearm in the commission of a felony, and possession of a firearm by a convicted felon. The information alleged that Davenport killed the victim "intentionally, but without premeditation." Davenport presented a self-defense theory at trial. The court instructed the jury that in order to convict Davenport of manslaughter, the State had to prove that Davenport killed the victim "without malice, either (a) intentionally upon a sudden quarrel, or (b) unintentionally while in the commission of the unlawful act of assault," and that his action was not justified as set out in the jury instruction pertaining to self-defense. The jury convicted Davenport of the lesser charge of manslaughter, along with use of a firearm in the commission of a felony and possession of a firearm by a felon. The Douglas County public defender's office represented Davenport at trial and on direct appeal.
On direct appeal, in addition to the numerous assignments of error raised by Davenport's counsel, he argued in a pro se brief that the court failed to adequately instruct the jury because it did not define the term "recklessly" with regard to the manslaughter instruction. We affirmed the convictions and sentences in all respects. See State v. Davenport, No. A-94-009, 1994 WL 642698 (Neb.App. Nov. 15, 1994) ().
Davenport later filed a motion for postconviction relief claiming ineffective assistance of counsel in a number of specified ways, including failing to request a jury instruction (1) on self-defense against a group of people and (2) defining the term "recklessly" for purposes of manslaughter. We held that the record affirmatively showed Davenport was not entitled to postconviction relief and that the district court did not err in overruling the motion without a hearing. See State v. Davenport, No. A-98-571, 1999 WL 703624 (Neb. App. Sept. 7, 1999) ().
On November 3, 2006, Davenport filed a second motion for postconviction relief. Under the broad heading "Defendant's Claims," Davenport claimed "violations of his right to [e]ffective [a]ssistance of [c]ounsel, his right to a [f]air [t]rial, and his right to [d]ue [p]rocess of [l]aw, guaranteed by the Fifth Sixth and the Fourteenth Amendments." Under the heading "Claim I," Davenport asserted that in State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998) — decided 8 months prior to the decision in his direct appeal — the Nebraska Supreme Court held there was no requirement of intent to kill in manslaughter, and he asserted that the stepped jury instruction given in Davenport's case for murder in the second degree and the lesser-included offense of manslaughter was contrary to the ruling in Jones. Under the heading "Claim II," Davenport alleged that after the decisions in his direct appeal and first motion for postconviction relief, the Nebraska Supreme Court determined in State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002), that a defendant could not be convicted of an intentional crime — use of a weapon to commit a felony — when the underlying felony is an unintentional crime, such as manslaughter. He also alleged that using a procedural default to ignore plain error resulting in an unconstitutional incarceration "would render the plain error doctrine and postconviction relief remedies meaningless." The district court dismissed the motion without an evidentiary hearing, stating that "[t]here are no facts raised by [Davenport] leading to issues that could not have been raised on direct appeal or in the prior Motion for Post-Conviction Relief and [Davenport] is not entitled to maintain successive motions for post-conviction relief."
Davenport timely appealed to this court. We sustained in part the State's motion for summary affirmance, affirming the district court's dismissal as to Davenport's "Claim I," but we allowed Davenport's appeal to continue as to his "Claim II."
Davenport assigns that the district court erred in (1) finding that his claims were procedurally barred when plain error existed, (2) failing to find that he received ineffective assistance of counsel at the trial and appellate levels, and (3) failing to grant him an evidentiary hearing.
A defendant requesting postconviction relief must establish the basis for such relief, and the district court's findings will not be disturbed unless they are clearly erroneous. State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. Id. When reviewing a question of law, an appellate court resolves the question independently of the lower court's conclusion. Id.
Plain error may be asserted for the first time on appeal or be noted by an appellate court on its own motion. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007). Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. Id.
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Jackson, supra. Whether counsel's performance was deficient and whether that deficiency prejudiced the defendant are legal determinations that an appellate court resolves independently of the lower court's decision. Id.
Before reaching Davenport's assignments of error, we set forth the case law leading up to, and including, the decision in State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
In State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989), the Nebraska Supreme Court determined that an unintentional crime could not serve as the predicate offense for use of a deadly weapon to commit a felony. Gerald Dean Ring was convicted of felony motor vehicle homicide and of using a motor vehicle as a deadly weapon in the commission of the homicide. The Supreme Court held that in order to convict Ring of the use of a deadly weapon charge under Neb.Rev.Stat. § 28-1205 (Reissue 1985), the State had to prove Ring used his vehicle, the weapon at issue, "for the purpose of committing a felony." 233 Neb. at 725, 447 N.W.2d at 911. The Ring court vacated Ring's use of a weapon conviction after determining that felony motor vehicle homicide was, by definition a felony which is committed unintentionally and that nothing in the record indicated that Ring sought or intended to commit the felony motor vehicle homicide.
In State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), the Nebraska Supreme Court determined that there was no requirement of intention to kill in committing manslaughter and that the distinction between second degree murder and manslaughter upon a sudden quarrel was the presence or absence of an intention to kill.
Next, the Nebraska Supreme Court rejected a challenge based upon Ring to a plea-based conviction. In State v. Burkhardt, 258 Neb. 1050, 607 N.W.2d 512 (2000), Jeffrey Burkhardt pled guilty to manslaughter and use of a firearm to commit a felony in exchange for the State's amending its charge of first degree murder to manslaughter and filing no further charges. The trial court accepted the plea and convicted Burkhardt of both charges. Burkhardt appealed his convictions, arguing that he could not be convicted of manslaughter and use of a weapon to commit a felony, based upon State v. Ring, supra. But the Supreme Court rejected such argument, stating that "[t]he voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, statutory, or constitutional." State v. Burkhardt, 258 Neb. at 1053, 607 N.W.2d at 515.
Then, in 2002, the Supreme Court released its decision in State v. Pruett, supra. In that case, Stuart R. Pruett, planning "to mess with" his friend, loaded a gun with a "dummy round," and fired it; but the gun instead fired an actual round, which struck and killed Pruett's friend. 263 Neb. at 102, 638 N.W.2d at 813. A jury convicted Pruett of manslaughter by unintentionally causing another's death while committing the offense of reckless assault. After the Supreme Court discussed its decision in State v. Kistenmacher, 231 Neb. 318, 436 N.W.2d 168 (1989), regarding the term "recklessly" and the irrelevancy of subjective intent, the court held that reckless assault was...
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State v. Britt
... ... State v. Davenport, 17 Neb. App. 1, 755 N.W.2d 816 (2008). Here, although the hearsay issue was raised before the county court, it was not presented to or passed on by the district court. We decline to address Britt's arguments further. Jury Instruction No. 5. Britt asserts that the county court and ... ...