State v. Tucker
| Decision Date | 31 March 2009 |
| Docket Number | No. A-08-623.,A-08-623. |
| Citation | 764 N.W.2d 137,17 Neb. App. 487 |
| Parties | STATE of Nebraska, appellee, v. Dwight L. TUCKER, appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1.
Jurisdiction: Appeal and Error.
When a jurisdictional question does not involve a factual dispute, an appellate court determines the issue as a matter of law.
2.
Effectiveness of Counsel: Appeal and Error.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.
3.
Verdicts: Appeal and Error.
On a claim of insufficiency of the evidence, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
4.
Sentences: Appeal and Error.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
5.
Indictments and Informations.
It is not necessary to refile an information amended by interlineation where the cause had never been dismissed and the information remained in the files of the court during the entire proceeding.
6.
Courts: Pleas: Self-Incrimination.
A court must inform a defendant of the privilege against self-incrimination before it can accept a guilty or no contest plea.
7.
Constitutional Law: Effectiveness of Counsel.
Defense counsel bears the primary responsibility for advising a defendant of his or her right to testify or not to testify, of the strategic implications of each choice, and that the choice is ultimately for the defendant to make.
8.
Courts: Self-Incrimination.
Absent a statute providing otherwise, the trial judge is not required to warn a defendant represented by counsel of his or her privilege against self-incrimination, except that the trial judge may in his or her discretion impart such a warning.
9.
Effectiveness of Counsel: Time: Appeal and Error.
Claims of ineffective assistance of counsel raised on direct appeal by the same counsel who represented the defendant at trial are premature and will not be addressed on direct appeal.
10.
Convictions: Weapons: Intent.
When the underlying felony for the use of a weapon charge is an unintentional crime, the defendant cannot be convicted of use of a deadly weapon to commit a felony.
11.
Criminal Law: Trial.
A trial judge sitting without a jury is not required to articulate findings of fact or conclusions of law in criminal cases.
12.
Criminal Law: Trial: Judges: Presumptions.
It will be presumed in a jury-waived criminal trial that the judge was familiar with and applied the proper rules of law unless it otherwise clearly appears.
13.
Convictions: Evidence: Appeal and Error.
A conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.
14.
Criminal Law: Words and Phrases.
A person commits terroristic threats if he or she threatens to commit any crime of violence with the intent to terrorize another.
15.
Criminal Law: Words and Phrases.
A crime of violence is an act which injures or abuses through the use of physical force and which subjects the actor to punishment by public authority.
16.
Criminal Law: Words and Phrases.
A defendant does not have to actually commit a crime of violence, because it is the threat of violence which is at the heart of the crime of terroristic threats.
17.
Criminal Law: Words and Phrases.
For purposes of the offense of terroristic threats, a threat may be written, oral, physical, or any combination thereof.
18.
Intent: Words and Phrases.
A direct expression of intention by the actor is not required because the intent with which an act is committed involves a mental process and intent may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.
19.
Intent: Circumstantial Evidence: Proof.
Whether a defendant possesses the requisite state of mind is a question of fact and may be proven by circumstantial evidence.
20.
Appeal and Error.
An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the controversy before it.
21.
Statutes: Sentences.
The statute on indeterminate sentences does not require that a minimum term be different from a maximum term.
22.
Statutes: Sentences.
There is no statutory requirement that a sentence for either a Class II or a Class III felony have a minimum term less than the maximum term.
23.
Sentences.
The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
24.
Sentences.
When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.
25.
Sentences.
A sentence validly imposed takes effect from the time it is pronounced.
26.
Sentences.
When a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way, either during or after the term or session of court at which the sentence was imposed.
27.
Judgments: Records.
When there is a conflict between the record of a judgment and the verbatim record of the proceedings in open court, the latter prevails.
Thomas C. Riley, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.
Dwight L. Tucker, pro se.
Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.
Following a bench trial, the district court convicted Dwight L. Tucker of manslaughter, use of a deadly weapon to commit a felony, and being a felon in possession of a deadly weapon. The court sentenced Tucker to consecutive sentences of imprisonment and set the same maximum and minimum term for each sentence. We reject Tucker's assertion that amending a duly filed information by interlineation deprives a district court of jurisdiction—an assertion that borders on the frivolous. We conclude that the court had no duty to advise Tucker of his privilege against self-incrimination and that Tucker's argument that his counsel provided ineffective assistance is premature. We further conclude that evidence supports the court's finding of an intentional felony upon which to base the use of a weapon conviction and that the court did not abuse its discretion in sentencing Tucker. We affirm.
The State charged Tucker with murder in the first degree (both premeditated murder and felony murder while attempting to perpetrate a robbery), use of a deadly weapon to commit a felony, and possession of a deadly weapon by a convicted felon. The district court conducted a bench trial, and the parties stipulated that Tucker was a convicted felon in Nebraska at the time the charged crimes were alleged to have occurred.
The evidence showed that during the early morning hours of June 2, 2007, the paths of Tucker and the victim—strangers to each other—intersected. The victim had driven his car to a gas station located at 13th and Vinton Streets in Omaha, Nebraska, and used the outside pay telephone to call his girlfriend. Meanwhile, Tucker had agreed to accompany his cousin, Jerry Valentine, on a drug deal to make sure nothing happened to Valentine.
Valentine drove Tucker to the gas station at 13th and Vinton Streets and handed Tucker a gun in case somebody tried to rob Valentine. Tucker testified that he and Valentine walked up to the person at the pay telephone, that Tucker had the gun pointed toward the ground, and that Valentine said "what's up." Tucker testified that the victim ignored Valentine, immediately looked at Tucker, and asked, Tucker testified that he did not say anything and that the victim pushed Tucker back and started coming toward him. Tucker backed away from the victim. He testified, Tucker explained that he did not know that the gun was cocked and loaded. He testified that he was shocked and scared, that he panicked, and that he ran off behind Valentine. Surveillance footage showed that two men approached the victim and that the victim acted in a confrontational manner toward Tucker, who appears to be holding a gun pointed to the ground. The surveillance footage from the rear of the gas station showed the two men running away from the gas station. The victim suffered a gunshot wound to his lower abdomen, exiting through his lower back. He later died at the hospital.
The district court convicted Tucker of manslaughter, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. The court sentenced Tucker to imprisonment of 20 to 20 years for count I (manslaughter), 10 to 10 years for count II (use of a deadly weapon), and 4 to 4 years for count III (possession of a deadly weapon).
Tucker timely appeals.
Tucker's counsel alleges that the court erred in (1) finding Tucker guilty of use of a firearm to commit a felony because the evidence was insufficient as a matter of law, (2) imposing excessive sentences, and (3) imposing the same term of years on the minimum and maximum sentences.
In a supplemental pro se brief, Tucker alleges that (1) the court lacked subject matter jurisdiction, (2) the court abused its discretion by failing to advise him of...
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State v. Scott
...State v. Al–Sayagh, 268 Neb. 913, 689 N.W.2d 587 (2004); State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995); State v. Tucker, 17 Neb.App. 487, 764 N.W.2d 137 (2009). Therefore, in the instant case, the district court committed plain error when it explicitly ordered that the sentence for us......
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State v. Clark
... ... Saltzman , 235 Neb ... 964, 458 N.W.2d 239 (1990) ... [ 19 ] State v. Bryant , 311 Neb ... 206, 971 N.W.2d 146 (2022) ... [ 20 ] State v. Miranda , 313 Neb ... 358, 984 N.W.2d 261 (2023) ... [ 21 ] Bryant, supra note ... [ 22 ] See, e.g., State v. Tucker , ... 17 Neb.App. 487, 764 N.W.2d 137 (2009); State v ... Curlile , 11 Neb.App. 52, 642 N.W.2d 517 (2002); ... State v. Tillman , 1 Neb.App. 585, 511 N.W.2d 128 ... [ 23 ] Bryant, supra note 19, 311 ... Neb. at 209, 971 N.W.2d at 149 ... [ 24 ] Tillman, supra note 22, 1 ... ...
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State v. Miranda-Henriquez
...validly imposed takes effect from the time it is pronounced. State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006); State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009), affirmed 278 Neb. 935, 774 N.W.2d 753. When a valid sentence has been put into execution, the trial court cannot modify......
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State v. Fletcher, No. A-08-723 (Neb. App. 9/1/2009)
...by the same counsel who represented the defendant at trial are premature and will not be addressed on direct appeal. State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009); State v. Walls, 17 Neb. App. 90, 756 N.W.2d 542 (2008). Therefore, Fletcher's ineffective assistance of counsel clai......