State v. Davis

• Decision Date: 14 April 1998
• Docket Number: No. A-97-060,A-97-060
• Citation: 6 Neb.App. 790,577 N.W.2d 763
• Parties: STATE of Nebraska, Appellee, v. Steven L. DAVIS, Appellant.
• Court: Nebraska Court of Appeals

Page 763

577 N.W.2d 763

6 Neb.App. 790

STATE of Nebraska, Appellee, v.Steven L. DAVIS, Appellant.

No. A-97-060.

Court of Appeals of Nebraska.

April 14, 1998.

Syllabus by the Court

1.Constitutional Law: Effectiveness of Counsel: Proof.To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitutionandarticle I, § 11, of the Nebraska Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1)counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

2.Rules of Evidence: Other Acts.Under Neb.Rev.Stat. § 27-609(Reissue 1995), once a prior conviction has been established, the inquiry must end, and it is improper to inquire into the nature of the crime, the details of the offense, or the time spent in prison as a result thereof.

3.Constitutional Law: Warrantless Searches: Probation and Parole.A provision in a parole order requiring a parolee to submit to a warrantless search of his or her person or property at any time is valid, enforceable, and constitutional, if it is applied in a reasonable manner and contributes to the rehabilitation of the parolee.

4.Right to Counsel.A defendant's mere distrust of, or dissatisfaction with, his or her attorney is not a sufficient reason to require appointment of substitute counsel.

Eugene G. Schumacher, of Sipple, Hansen, Emerson & Schumacher, Columbus, for appellant.

Don Stenberg, Attorney General, and David T. Bydalek, Lincoln, for appellee.

HANNON, IRWIN, and MUES, JJ.

MUES, Judge.

I.INTRODUCTION

On September 13, 1994, Steven L. Davis was convicted of burglary, first degree criminal trespass, third degree assault on an officer, and tampering with physical evidence.Davis directly appealed to this court, and we affirmed his convictions in State v. Davis, 95 NCA No. 31, case No. A-94-1056, 1995 WL 467528(not designated for permanent publication).

Davis subsequently filed a motion for postconviction relief, requesting an evidentiary hearing and appointment of counsel to assist in his appeal.Davis' motion was granted, and Davis' newly appointed counsel filed a supplemental motion for post-conviction relief.Following an evidentiary hearing, the district court denied Davis' motions.Davis now appeals that judgment.For the reasons set forth below, we affirm.

II.BACKGROUND

On the morning of May 5, 1994, police officers received a report that Bob's Bike Shop had been burglarized.Reportedly stolen were several pairs of Oakley sunglasses, a Schwinn Moab mountain bike, and some cash.

During an initial search of the area, the Schwinn mountain bike was discovered on the roof of a building near the bike shop.The only window near the bike which appeared to be functional was the window to Davis' apartment.Investigator Douglas Molczyk, of the Columbus Police Department, proceeded to Davis' apartment to question him about the burglary.After knocking on the door and announcing who he was, Molczyk was admitted into the apartment.

When Molczyk entered the apartment, there was a male standing in the living room, later identified to be Terry McHugh, and Davis was lying on the couch.Molczyk informed Davis and McHugh that there had been a burglary at the bike shop and asked if they knew anything about it.Davis got up off the couch, revealing a pair of sunglasses.The sunglasses had a white tag attached by a white string, similar to the tags used by Bob's Bike Shop.

Both Molczyk and Davis grabbed for the sunglasses.Molczyk grabbed the sunglasses, and Davis ripped off the tag.Molczyk attempted to place Davis under arrest, but Davis broke free and ran to the bathroom.While in the bathroom, Davis flushed the tag down the toilet.When Davis came out of the bathroom, he told Molczyk to get out of his apartment.Molczyk attempted to calm Davis down, but Davis refused to do so.Molczyk asked a passerby to go to the bike shop and tell the officers that he needed assistance.Davis took a boxer's stance and stated, " 'Leave my apartment or I'll deck you.' "95 NCA No. 31at 46.Molczyk backed away from Davis, and Davis hit Molczyk in the chest, causing him to lose his balance and fall out of the apartment.Molczyk skinned a knuckle in the process.

Officer Jeffrey Uhl arrived from the bike shop to assist Molczyk, and they attempted to reenter the apartment by kicking in the door.They were unable to do so, since the door had apparently been barred by an object.Someone inside the apartment said they were going to shoot the first officer who came through the door.The officers called for backup, and a standoff ensued, lasting for 2 hours.After the standoff, McHugh exited the apartment and was placed under arrest.Officers entered Davis' apartment and placed Davis under arrest for assault on an officer.Other charges were pending upon the outcome of the investigation of the burglary.

During the standoff, officers had called Davis' parole officer, Terry Denney, and informed him of the burglary and standoff.Denney decided that he needed to join the officers, and he drove to the location of Davis' apartment.After Davis had been arrested and escorted from the apartment, Denney requested that several officers assist in a "parole search" of Davis' apartment.Molczyk and one or two other officers assisted Denney in the search.Denney instructed the officers to search for contraband, weapons, and evidence from the burglary, any of which would have been a violation of the terms of Davis' parole.

Upon entering the apartment, Denney and the officers observed smoke in the kitchen and found evidence that someone had tried to destroy a pair of sunglasses by "cooking" them in the stove.A further search of the apartment produced a Schwinn mountain bike owner's manual, which contained the same serial number as the reportedly stolen bike.The officers also found several pairs of Oakley sunglasses, with tags similar to those used by Bob's Bike Shop; a pair of tennis shoes with tread which appeared to match a footprint found near the bike shop; and an ax, which may have been used in an attempt to gain access to the bike shop.

Prior to trial, Davis filed a motion to suppress evidence found during the first "search" of Davis' apartment.Davis alleged that the search was done prior to, not incident to, his arrest; that the search was done without a warrant and without probable cause to believe a felony had been committed; and that there were no exigent circumstances.At the hearing, held August 31, 1994, Davis' counsel argued that the evidence showed that Molczyk entered Davis' apartment without Davis' consent and therefore had no right to be in Davis' apartment.The trial court determined that Molczyk did have permission to enter the apartment and overruled the motion.The court's finding was not the subject of Davis' direct appeal.

On the morning trial was scheduled to commence, Davis' court-appointed counsel, Thomas Spinar, informed the court that Davis had requested that Spinar withdraw as counsel.The court inquired of Davis as to why he wished Spinar to withdraw.Davis informed the court that Spinar was working with the prosecutor; that Spinar failed to have evidence independently tested so that Davis could prove it was planted; and that at the suppression hearing, Davis was not given the opportunity to get on the stand and tell his side of the story.

Davis also introduced a letter of complaint he had written to the Nebraska State Bar Association.In the letter, Davis alleged that Spinar had refused to accept several of Davis' telephone calls; that Spinar had tried to persuade Davis to plead guilty; and that at the hearing on the motion to suppress, Spinar refused to call McHugh to testify.According to Davis, McHugh was going to admit his guilt and testify that Davis was not involved in the burglary.The court explained that during the trial, Davis would have the opportunity to call his witnesses.The court further explained that mere distrust or dissatisfaction with an attorney was not a sufficient reason to require appointment of substitute counsel and informed Davis that it was going to overrule his request.Davis then asked the court for a continuance in order to hire another attorney.The court, noting that it was the day of trial, denied Davis' request.Davis then informed the court that he wished to proceed pro se.However, upon further inquiry, Davis stated that he did not wish to proceed pro se.Accordingly, Spinar remained as counsel throughout the trial.

On September 13, 1994, Davis was found guilty of burglary, first degree criminal trespass third degree assault on an officer, and tampering with physical evidence.Davis, acting pro se, filed a motion for new trial on September 27.On October 5, Davis filed an amended motion for new trial.On October 13, Davis filed another motion for new trial.A sentencing hearing was held October 28.On that same date, prior to sentencing, the court addressed the three motions for new trial.The court first inquired as to who had filed the motions.Spinar informed the court that Davis had filed the motions.Spinar advised the court that Davis had contacted him within the initial 10-day period for filing a motion for new trial and requested Spinar to file such motion but that for reasons which Spinar did not want to comment on, he chose not to file the motion on Davis' behalf.The court found that the three motions for new trial were untimely and therefore a nullity, and of no force or effect.

Davis was then sentenced to terms of imprisonment of not less than 7 nor more than 10 years on the charge of burglary, 1 year on the charge of first degree criminal trespass, not less than 1 nor more than 2 years on the charge of third degree...