State v. McBride

Decision Date25 July 1997
Docket NumberNo. S-96-815,S-96-815
Citation567 N.W.2d 136,252 Neb. 866
PartiesSTATE of Nebraska, Appellee, v. Darrell Lee McBRIDE, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Judgments: Appeal and Error. On questions of law, an appellate court has an obligation to reach independent conclusions irrespective of the decision made by the court below.

2. Constitutional Law: Criminal Law: Pleas. The considerations involved in determining whether one freely, intelligently, voluntarily, and understandingly pleads guilty have no application where a criminal defendant pleads not guilty, for in such a circumstance, the defendant does not surrender the constitutional rights inherent in a trial.

3. Lesser-Included Offenses. To constitute a lesser-included offense, the elements of the lesser crime must be such that it is impossible to commit the greater crime without at the same time having committed the lesser one.

4. Courts: Lesser-Included Offenses. In determining whether a lesser crime is a lesser-included offense, a court applies a statutory elements test, wherein it initially looks not to the evidence but, rather, only to the elements of the criminal offense.

5. Sentences. A sentence imposed without a legal basis is void; a void sentence is no sentence.

6. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal unless the sentencing court's rulings unfairly deprive a litigant of a substantial right and a just result.

7. Criminal Law: Double Jeopardy. The Double Jeopardy Clause protects against three distinct abuses: (1)a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

8. Criminal Law: Double Jeopardy. The Double Jeopardy Clause precludes multiple punishment for the same offense imposed in a single proceeding.

9. Double Jeopardy: Statutes: Legislature: Intent: Convictions. A determination of whether two convictions in a single trial lead to multiple punishment depends upon whether the Legislature, when designating the criminal statutory scheme, intended that cumulative sentences be applied for conviction on both offenses.

10. Double Jeopardy: Statutes: Proof. In both the multiple punishment and multiple prosecution contexts, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one for double jeopardy purposes is whether each provision requires proof of a fact which the other does not.

11. Double Jeopardy: Words and Phrases. For double jeopardy purposes, the phrase "same offense" means the same whether or not the punishments or prosecutions are successive.

12. Convictions: Evidence: Appeal and Error. In determining whether the evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to the jury, which are within a jury's province for disposition.

13. Constitutional Law: Criminal Law: Courts: Speedy Trial: Effectiveness of Counsel. It is the duty of a court to see that justice is administered speedily, without delay, and legally, and is in conformity with constitutional mandates, including that a criminal defendant receives a trial which is fair and does not contravene an indigent criminal defendant's Sixth Amendment right to effective counsel.

14. Constitutional Law: Criminal Law: Trial: Effectiveness of Counsel. A trial court discharges its duty to ensure a trial which does not contravene an indigent criminal defendant's Sixth Amendment right to effective counsel by appointing, where counsel is required, a qualified attorney to represent the defendant.

15. Appeal and Error. Errors argued but not assigned are not considered.

James E. Mitchell, Grand Island, for Appellant.

Don Stenberg, Attorney General, and Jay C. Hinsley, Lincoln, for Appellee.

CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

The defendant-appellant, Darrell Lee McBride, was charged in the first case, at the district court's docket 9672, page 149, with attempted first degree assault, a Class IV felony, in violation of Neb.Rev.Stat. §§ 28-201 and 28-308 (Reissue 1995); with discharge of a firearm, a Class III felony, in violation of Neb.Rev.Stat. § 28-1212.02 (Reissue 1995); and with use of a firearm to commit a felony, a Class II felony, in violation of Neb.Rev.Stat. § 28-1205 (Reissue 1995). In the second case, at the district court's docket 9672, page 285, McBride was charged with being a felon in possession of a firearm, a Class III felony, in violation of Neb.Rev.Stat. § 28-1206 (Reissue 1995). After the cases were consolidated for trial, McBride waived a jury in the second case, which was tried to the bench at the same time as the first case was tried to a jury.

In accordance with the verdict in the first case, the district court adjudged McBride guilty on each of the three offenses charged in that case and further adjudged him guilty of the offense charged in the second case. The district court thereafter sentenced McBride in the first case to imprisonment for a single period of not less than 20 months nor more than 5 years on both the attempted assault and discharge crimes combined, and to a consecutive like period of imprisonment on the use crime. In the second case, the district court sentenced McBride to imprisonment for a period of not less than 2 nor more than 10 years, to be served consecutively to the sentences imposed in the first case.

McBride appealed to the Nebraska Court of Appeals, asserting, in summary, that the district court erred in (1) improperly arraigning him, (2) imposing improper sentences, (3) permitting him to be placed in multiple jeopardy, (4) finding the evidence sufficient to support the charges, and (5) failing to ensure that he received the effective assistance of counsel. He thereafter successfully petitioned to bypass the Court of Appeals.

For the reasons hereinafter stated, the judgment in the first case is affirmed in part and in part vacated and set aside and the cause remanded with direction; the judgment in the second case is affirmed.

II. FACTS
1. EVENTS

At approximately 10:15 p.m. on January 13, 1996, Brandon Griswold, Richard Rodrigo, and another man drove to the residence of John Labs, which was located in the area of West 23d and Calhoun Streets in Bellevue, Sarpy County, Nebraska, to attend a "little get-together" Labs was having. Griswold testified that after about 15 minutes to half an hour, he, Rodrigo, and two others, Luis Victoria and Jean-Paul "JP" Reavill, who were also at Labs' residence, went outside, preparing to leave. Rodrigo testified that he believed they remained at the house "probably an hour or two."

In any event, according to Griswold, as the four men approached Griswold's automobile, McBride appeared and said, "what's up ... you want some of this...." Griswold and the three other men entered Griswold's automobile, with Griswold taking the driver's seat, Rodrigo the front passenger seat, Victoria the passenger-side back seat, and Reavill the driver's-side back seat. As Griswold backed the automobile onto the street from a driveway, Rodrigo opened the passenger-side window and asked McBride what the problem was. Griswold claims that as he turned the corner, reaching a speed of between 35 and 45 miles per hour, he saw through his rearview mirror that McBride and another man wearing a white T-shirt were "chasing after" them. He also saw through his rearview mirror that McBride had pulled out a gun. Griswold then ducked, slammed on the accelerator, and heard four or five quick gunshots. He did not actually see McBride fire the weapon and was not focused on the other man with McBride.

At this same time, Rodrigo had his head outside the vehicle's window to see what was happening. He testified that he saw McBride run directly behind the automobile, pull out a gun from behind his leg, point it in the automobile's direction, and fire it. He heard four shots and pulled his head back into the vehicle once he saw that McBride was firing.

Contrary to the testimony of those two witnesses, Reavill testified that he did not see McBride at any time before he got into Griswold's automobile. He further testified that while he was seated in the vehicle, he could not "really see out of it" because it was dark outside and the windows were tinted. He stated, "I couldn't really picture faces and everything, but I saw like a whitish shirt and flashing right next to it, but I don't know who did it or--I didn't really think nothing of it because it didn't sound real." Reavill testified that he did not see McBride with a gun at any time that evening.

After the shooting, the four men proceeded to a nearby gas station where, while inspecting the automobile for damage, Griswold discovered what he believed to be two bullet holes in the passenger-side mirror. In actuality, the plastic encasement around the right outside rearview mirror contained two areas of damage. One of the broken areas was approximately three-eighths of an inch in width and one-fourth of an inch deep. The other area was approximately three-fourths of an inch in width and one-fourth of an inch deep. The two damaged areas were 21/8 inches apart.

Although the gas station was open for business, none of the men asked to use the telephone. Griswold, Reavill, and Rodrigo also saw a police officer at a nearby parking lot, but none of them flagged him down. Instead, according to Griswold, he and Rodrigo reentered Griswold's automobile and returned to Labs' residence. Reavill, however, testified that all four of the men and two other men driving another vehicle returned to Labs' residence.

Griswold...

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