State v. Davlin

719 N.W.2d 243

272 Neb. 139

STATE of Nebraska, Appellee v. Clifford J. DAVLIN, Appellant.

No. S-05-547.

Supreme Court of Nebraska.

August 4, 2006.

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Dennis R. Keefe, Lancaster County Public Defender, Scott P. Helvie, and Matthew G. Graff, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and CASSEL, Judge, and HANNON, Judge, Retired.

MILLER-LERMAN, J.

NATURE OF CASE

Clifford J. Davlin appeals his conviction and sentence for second degree murder. After his first conviction was reversed by this court in State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002), Davlin was convicted a second time. Following his second conviction, Davlin was sentenced to life in prison. On appeal, Davlin assigns error to the jury instructions given by the district court for Lancaster County, the court's denial of his motion to continue the trial, and the court's admission of certain evidence including expert testimony, Davlin's statements to detectives, and photographs of the victim's body. Davlin also raises issues with regard to double jeopardy, the form of the verdict, sentencing, and ineffective assistance of counsel. We affirm Davlin's conviction and sentence.

STATEMENT OF FACTS

The underlying facts of this case were described in Davlin's appeal of his first conviction as follows:

Tamara Ligenza, also known as Tamara Martin, was found dead in her Lincoln apartment after a fire on September 7, 1993. Ligenza was legally blind and was 6 months pregnant at the time of her death. Ligenza had been living with Davlin, but on September 6, Ligenza told Davlin to leave the apartment.... Davlin remained at or near the apartment building on September 6 and into the morning of September 7.

Ligenza was last seen alive, by her roommate, at about 1 a.m. on September 7, 1993. Ligenza lived in a house that had been converted to a duplex with one entrance that led to both apartments. Witnesses who lived in the building testified that they were awakened at approximately 4:30 a.m. by reports of a fire in the building. Davlin was identified as being in the duplex at the time of the fire, staying in the other apartment. Firefighters removed a severely burned body from the bedroom of Ligenza's apartment; the body was later identified by dental records as Ligenza's. An autopsy was performed, and the coroner's physician concluded that Ligenza had been killed by manual strangulation prior to the fire.

State v. Davlin, 263 Neb. at 286-87, 639 N.W.2d at 638-39.

Davlin was charged in 1997 with first degree murder in connection with the death of Ligenza. Davlin was also charged with arson. Following a trial in 2000, the jury found Davlin guilty of second degree murder and arson. He appealed to this court and assigned various errors. We first rejected Davlin's assertion that the district court erred in retroactively applying this court's decision in State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), and in therefore not instructing the jury that malice was an element of second degree murder. However, we concluded that the district court had committed reversible error when it instructed the jury on the essential elements of second degree murder by stating that in order to convict Davlin, the jury must find that Davlin caused Ligenza's death "`intentionally, but without malice.'" (Emphasis supplied.) Davlin, 263 Neb. at 292, 639 N.W.2d at 642. We therefore reversed Davlin's conviction for second degree murder and remanded the cause for a new trial on that count. We noted that because the jury acquitted Davlin of first degree murder, the Double Jeopardy Clause barred the State from retrying Davlin for first degree murder but did not prevent the State from proceeding with a new trial on a charge of second degree murder because the evidence at the first trial was sufficient to support Davlin's conviction. We rejected Davlin's remaining assignments of error and affirmed his conviction and sentence for arson. Davlin, supra. Among the assignments of error we rejected were assertions that the district court erred in admitting the expert testimony of Ken Scurto, a fire investigator for the State Fire Marshal's office, and Brian Nehe, a fire inspector for the city of Lincoln.

Upon remand, the State, on April 12, 2002, filed an amended information charging Davlin with having caused the death of Ligenza "intentionally, but without premeditation." On July 3, Davlin filed a motion to quash the amended information. He argued that the information should be quashed because it failed to allege that the killing was committed with "malice" and because it failed to allege that the killing was committed with the "specific intent to kill." The district court denied the motion to quash.

On December 27, 2002, Davlin filed a plea in bar asserting that a second prosecution for second degree murder would violate the Double Jeopardy Clause of the 5th and 14th Amendments to the U.S. Constitution and article I, § 12, of the Nebraska Constitution. The district court overruled the plea in bar, and Davlin filed an interlocutory appeal of the denial to this court. We granted the State's motion for summary affirmance and affirmed the district court's order overruling the plea in bar. State v. Davlin, 266 Neb. xxiv (No. S-03-151, July 16, 2003). The State filed a second amended information on December 6, 2004, charging Davlin with second degree murder.

Prior to the new trial, Davlin filed a motion for a hearing regarding the State's experts including, inter alia, the fire experts, Scurto and Nehe, and the pathologists, Drs. John Porterfield, Matthias Okoye, and Thomas Bennett. Davlin sought a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). Davlin also moved in limine to preclude the State from presenting the opinion testimony of such witnesses. Davlin specified that his challenge was not to the qualifications of the witnesses or to the validity of the scientific methods used, but, rather, that he was challenging the reliability of the experts' application of the scientific methods to the facts of this case. Following a hearing, the court denied Davlin's motion in limine with regard to the opinions of Porterfield, Okoye, and Bennett. The court generally denied the motion in limine with regard to the opinions of Scurto and Nehe, but sustained the motion in limine as to Scurto's opinion regarding the duration of the fire. The testimony of the pathologists and of the fire experts was admitted at trial over Davlin's objections.

Jury selection began on January 18, 2005. Before the jurors were brought into the courtroom, Davlin moved to continue the trial on the basis that he wished to secure the appearance of two witnesses who had appeared for the State in the first trial and who had been subpoenaed but had not been located by the State. Davlin asserted that both could provide potentially exculpatory testimony. The court denied Davlin's motion to continue, and jury selection and trial proceeded. Neither the State nor Davlin offered the testimony of these witnesses from the prior trial into evidence at this trial.

At trial, the court admitted over Davlin's objection recordings of three conversations between Davlin and certain Lincoln police detectives. These included a September 7, 1993, conversation with Det. Larry Barksdale, a September 11 conversation with Det. James Breen, and a November 22 conversation with Barksdale. Each of the conversations concerned events surrounding the fire, Davlin's relationship with Ligenza, and the police investigation of the fire and Ligenza's death. The court also admitted, over Davlin's objections, various photographs and slides of Ligenza's body. These included two photographs of the back of the body, five slides taken during the autopsy, and five photographs that were made from the autopsy slides.

The case was submitted to the jury on January 31, 2005. The court instructed the jury on the elements of second degree murder by stating that in order to find Davlin guilty, the jury must find that Davlin caused the death of Ligenza and that he "did so intentionally, but without premeditation." On February 1, the jury returned a verdict of guilty of second degree murder. The verdict form signed by the presiding juror stated "We, the Jury, duly impaneled and sworn in the above-entitled cause, do find the defendant, CLIFFORD J. DAVLIN, guilty of second degree murder."

On April 5, 2005, the court sentenced Davlin to life imprisonment and ordered that the sentence be served consecutively to any other sentences being served by Davlin, including the sentence previously imposed for arson. In imposing the sentence, the court stated:

Having regard for the nature and circumstances of the crime and the history, character and condition of ... Davlin, the Court finds that imprisonment of ... Davlin is necessary for the protection of the public and because a lesser sentence would depreciate the seriousness of his crime and promote disrespect for the law.

I do not believe that I am in a position to change the sentence that I imposed previously for the same offense.

It is therefore the judgment and the sentence of the Court that you, Clifford J. Davlin, be and hereby are ordered committed to an institution under the jurisdiction of the Nebraska Department of Correctional Services for a period of life.

Davlin appeals his conviction and sentence.

ASSIGNMENTS OF ERROR

Davlin asserts on appeal that his conviction for second degree murder in this case was in violation of the Double Jeopardy Clause. Davlin also asserts that the district court erred in (1) failing to...