State v. Davis

StAte of NebrASkA, Appellee , v.
miChAel p. dAviS, AppellANt.
757 N.W.2d 367
Filed November 21, 2008. 	No. S-08-135.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court reaches a conclusion independent of the lower court’s ruling.
3. Criminal Law: Homicide. Malice is not a necessary element of second
degree murder.
4. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A
claim of ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. The determining factor is whether the record is suf-
ficient to adequately review the question.
5. Trial: Evidence: Appeal and Error. If a matter has not been raised or ruled on
at the trial level and requires an evidentiary hearing, an appellate court will not
address the matter on direct appeal.
6. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
7. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
8. 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.
9. ____. In imposing a sentence, a judge should consider the defendant’s age, men-
tality, education, experience, and social and cultural background, as well as his
or her past criminal record or law-abiding conduct, motivation for the offense,
nature of the offense, and the amount of violence involved in the commission of
the crime.
Appeal from the District Court for Douglas County: JAmeS
m. murphy, Judge. Affirmed.
Matthew r. Kahler, of Finley Law Offices, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and George r. Love for
appellee.
STATE v. DAVIS 	755
Cite as 276 Neb. 755
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

heAviCAN, 	C.J., 	Wright, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
C oNNolly, J.
I. SUMMArY
In the evening hours of December 4, 1993, Michael P. Davis
killed Michael Campbell with a .22-caliber revolver. Campbell
was 16 years old and had never met Davis. Campbell had been
arguing with a casual acquaintance of Davis when Davis fired
a shot at Campbell and missed; then, after Campbell had turned
away from Davis, Davis walked up to Campbell, placed the
gun against the back of his head, and fired, killing him.
Following a bench trial, the court convicted Davis on one
count of second degree murder and a related count of use of
a weapon to commit a felony in connection with the murder.
The court sentenced him to life imprisonment on the second
degree murder conviction and 10 years’ imprisonment on the
weapon conviction. The court ordered the sentences to run
consecutively. Davis argues several issues, but the principle
issue is whether the State produced sufficient evidence to
convict him of the second degree murder charge. We conclude
that it did.
II. BACKGrOUND
1. fACtS
The killing arose out of an altercation between two groups
of young men ranging in age from 15 to 20 years. The first
group included Joe Sandoval, Ignacio Palma, Jesse Serrano,
and Davis. Before the day of the shooting, Davis had never met
any of the individuals with whom he went to a shopping mall
in Omaha, Nebraska. Nor had he met any members of the sec-
ond group that included Campbell, Mario Castenada, Victorio
ramos, and Micah Preiksaitis.
The first group, including Davis, gathered at Palma’s house
before going to the mall. While there, Davis showed a Colt
.22-caliber single-action revolver to Sandoval and Palma.
Davis’ brother, who was an acquaintance of Serrano and
Palma, had given Davis the gun earlier in the day. Palma
756 	276 NEBrASKA rEPOrTS

watched Davis load the gun, place it under his coat, and leave
the house.
Palma’s girlfriend drove the group to the mall some time
during the late afternoon or early evening. When the group
arrived at the mall, Davis said “he was glad he had a gun just
in case anybody started trouble with him.” Around this time,
the second group was arriving at the mall. The second group
entered the mall and went up the escalators to the arcade. While
they were going up on the escalators, Davis and Sandoval were
going down. Davis and Sandoval both alleged that the second
group was “throwing up gang signs and stuff like that, laughing
at us and stuff.”
Eventually both groups ended up in the arcade, where
Campbell and Serrano got into a confrontation. The exact cause
of the confrontation was unclear but apparently there had been
previous run-ins between Serrano and Campbell. Both groups
were in the arcade for about 2 minutes. Shortly afterward, both
groups headed outside to the south entrance of the mall.
The groups stood to the east of the entrance to the mall, fac-
ing each other. Serrano and Campbell stood face-to-face, and
continued exchanging words like: “‘We can do this. You know,
we can go ahead and fight, you know.’” Davis stood next to
Serrano, but the record reflects that only Campbell and Serrano
were arguing.
The fight escalated. The witnesses’ testimonies vary slightly.
Castenada, in Campbell’s group, stated that Serrano was reach-
ing into his waistband as if to pull a gun or knife. All the
witnesses agree that Campbell then stated, “‘What? You got
a gun? Shoot me, shoot me,’” and then he threw his hands
up. Davis then stated, “‘I’ll shoot him,’” pulled out his gun,
and fired the first shot. The witnesses disagreed where Davis
pointed the gun when he fired. Some witnesses stated it was
pointed at Campbell’s chest, and others stated Davis pointed
it away from Campbell. The record reflects that the first shot
did not hit Campbell and that the police never recovered
the bullet.
After Davis fired the first shot, Campbell turned and started
walking away from Serrano and Davis. According to witnesses,
STATE v. DAVIS 	757
Cite as 276 Neb. 755

between 5 and 30 seconds elapsed before Davis walked up to
Campbell, placed the gun against the back of his head, and
fired a second shot.
Davis and his group then got into Palma’s girlfriend’s car
and drove away. Palma testified that in the car, Davis said,
“‘I shot that Lomas’” and “‘I’ll do it again.’” In contrast,
Sandoval’s testimony is that Davis stated, “‘I didn’t mean to
shoot him.’”
An autopsy determined that the cause of death was a direct-
contact gunshot wound to the back of Campbell’s head.
2. proCedurAl hiStory
On April 21, 1994, the court heard evidence on Davis’
motion to transfer the charges to juvenile court and a motion
to suppress. In support of his motion to transfer, Davis pre-
sented three medical reports outlining Davis’ mental disorders.
The court later denied the motion to transfer. In July, Davis
appeared with counsel and waived his right to a jury trial.
3. dAviS’ triAl
The same judge who had ruled on Davis’ motion to trans-
fer the case to juvenile court presided over the trial. During
opening statements to the court, Davis’ trial counsel conceded
that Davis did fire the weapon that killed Campbell. Davis’
trial counsel asked the court to convict Davis of manslaughter
based on a lack of evidence regarding malice. Counsel argued
that Campbell provoked Davis, that Davis was confused and
disoriented, and that he did not act with good judgment. In
delivering the verdict, the judge specifically stated that he
was aware of Davis’ mental impairment and history of hospi-
talizations. he also stated that the evidence did not support a
manslaughter conviction. At the sentencing, the judge reiter-
ated that he had taken Davis’ mental problems and terrible
home life into account when determining the sentence. The
judge sentenced Davis to life imprisonment for the mur-
der conviction and 10 years’ imprisonment for the weapon
conviction.
In 1994, Davis appealed the convictions but withdrew the
appeal based on counsel’s erroneous advice regarding Davis’
eligibility for parole. In November 2003, Davis moved for
758 	276 NEBrASKA rEPOrTS

postconviction relief, alleging ineffective assistance of coun-
sel. On January 16, 2008, the Douglas County District Court
determined that Davis’ trial counsel’s advice to withdraw his
appeal was deficient and that the advice denied Davis his
direct appeal. Davis now appeals his 14-year-old sentence of
life imprisonment.
III. ASSIGNMENTS OF ErrOr
Davis assigns, consolidated, restated, and renumbered, that
the district court erred in (1) finding sufficient evidence to
find Davis guilty beyond a reasonable doubt of second degree
murder, (2) including malice as an element of second degree
murder, (3) imposing an excessive sentence of life imprison-
ment, and (4) failing to find that Davis’ counsel provided inef-
fective assistance.
IV. ANALYSIS
1. SuffiCieNCy of evideNCe
Davis contends that the evidence was not sufficient for the
court to find him guilty beyond a reasonable doubt of second
degree murder.
(a) Standard of review
[1] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for
an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.1
(b) resolution
Our standard of review as stated above requires substantial
deference to the factual findings made by the trial court. We
do not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence. Such matters are for the
finder of fact.2
1 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
2 Id. See State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005).
STATE v. DAVIS 	759
Cite as 276 Neb. 755

The court convicted Davis of second degree murder. “A
person commits murder in the second degree if he causes the
death of a person intentionally, but without premeditation.”3 In
contrast, “[a] person commits manslaughter if he kills another
without malice, either upon a sudden quarrel, or causes the
death of another unintentionally while in the commission of an
unlawful act.”4 Davis contends that the record lacks sufficient
evidence to find him guilty beyond a reasonable doubt of sec-
ond degree murder. Instead, Davis claims that the evidence is
consistent with manslaughter under the “sudden quarrel” ele-
ment. A sudden quarrel requires provocation which causes a
reasonable person to lose normal self-control.5
Although immediately before the shooting, an argument
had erupted between Campbell and a member of Davis’
group, the argument did not include Davis; nor had any
of the individuals in either group displayed any weapons.
What punctures Davis’ manslaughter theory is that after the
first shot, 5 to 30 seconds elapsed before he walked up to
Campbell and shot him execution-style in the back of the
head. Despite Davis’ arguments, the evidence clearly shows
no “sudden quarrel” or adequate provocation that hindered
Davis’ ability to act rationally and reasonably. The court did
not err in finding beyond a reasonable doubt that Davis inten-
tionally killed Campbell.
Viewed in a light most favorable to the State, the evidence is
sufficient to support a second degree murder conviction.
2. mAliCe AS AN elemeNt of SeCoNd degree murder
(a) Standard of review
[2] When reviewing a question of law, an appellate court
reaches a conclusion independent of the lower court’s ruling.6
3 Neb. rev. Stat. § 28-304 (reissue 1995).
4 Neb. rev. Stat. § 28-305 (reissue 1995).
5 State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), overruled on other
grounds, State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994).
6 State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).
760 	276 NEBrASKA rEPOrTS

(b) resolution
[3] Davis asserts that the trial court used the wrong stan-
dard for second degree murder when it found that Davis
killed Campbell intentionally and with malice. Since 1978,
§ 28-304 has provided that “[a] person commits murder in the
second degree if he causes the death of a person intentionally,
but without premeditation.” Before 1977, the second degree
murder statute defined such a killing as one done “purposely
and maliciously.”7 Despite this statutory change in the defini-
tion of second degree murder, this court continued to include
malice as a necessary element of second degree murder until
1998.8 In State v. Burlison,9 we held that malice is not a
necessary element of second degree murder under § 28-304.
But under the law as it existed in 1994, when Davis was
convicted and sentenced, malice was an element of second
degree murder.10
Although malice was an element of second degree mur-
der at the time of Davis’ conviction, we have concluded that
Burlison may be applied retroactively to a criminal act that
occurred before Burlison was decided.11 So Davis’ allegation is
correct that malice was not required for Davis’ second degree
murder conviction. We conclude, however, that the district
court’s finding of malice was not prejudicial to Davis because
it created a greater burden on the State regarding intent.12 By
finding that Davis had to have acted with malice, the court
imposed a higher burden on the State than was required under
Burlison. Because the State nonetheless satisfied this higher
burden, it clearly would have satisfied its burden of proof had
it not been required to show malice. Thus, we conclude that
7 Neb. rev. Stat. § 28-402 (reissue 1975).
8 See, e.g., State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996); State v.
Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994); State v. Myers, 244 Neb.
905, 510 N.W.2d 58 (1994).
9 State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
10 See State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994), overruled,
State v. Burlison, supra note 9.
11 See State v. Redmond, 262 Neb. 411, 631 N.W.2d 501 (2001).
12 See State v. Jackson, 258 Neb. 24, 601 N.W.2d 741 (1999).
STATE v. DAVIS 	761
Cite as 276 Neb. 755

Davis was not prejudiced by the required showing of malice
for his conviction.
Because malice is not an element of second degree murder,
the trial court placed a greater burden of proof on the State. We
conclude that Davis was not prejudiced.
3. iNeffeCtive ASSiStANCe of C ouNSel
(a) Standard of review
[4,5] A claim of ineffective assistance of counsel need not
be dismissed merely because it is made on direct appeal.13
The determining factor is whether the record is sufficient to
adequately review the question.14 If a matter has not been
raised or ruled on at the trial level and requires an evidentiary
hearing, an appellate court will not address the matter on
direct appeal.15
(b) resolution
Davis alleges that he received ineffective assistance of trial
counsel. he asserts that (1) counsel was ineffective because
despite his young age and with mental health issues, counsel
allowed him to waive his right to a jury trial; (2) counsel was
ineffective for advising Davis to waive his right to testify; and
(3) counsel was ineffective because he did not present evidence
of Davis’ mental condition during the trial and did not have
Davis undergo a competency examination before trial.
We determine that an evaluation of defense counsel’s actions
would require an evaluation of trial strategy and of matters not
contained in the record. We do not, and cannot, determine on
direct appeal whether Davis received ineffective assistance of
counsel because the record lacks sufficient evidence regarding
defense counsel’s strategy or lack thereof. We conclude that the
record on direct appeal is not sufficient to adequately review
these claims of ineffective assistance.
13 State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006); State v. Faust, 265
Neb. 845, 660 N.W.2d 844 (2003), disapproved on other grounds, State v.
McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
14 Id.
15 Id.
762 	276 NEBrASKA rEPOrTS

4. exCeSSive SeNteNCe
(a) Standard of review
[6] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.16
(b) resolution
[7-9] The sentence of life imprisonment imposed on Davis
by the district court fell within the statutory sentencing limits
for second degree murder. Accordingly, we review the sentence
for abuse of discretion.17 An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are unten-
able or unreasonable or if its action is clearly against justice
or conscience, reason, and evidence.18 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.19 We have listed factors that control any
sentence imposed by the district court:
In imposing a sentence, a judge should consider the
defendant’s age, mentality, education, experience, and
social and cultural background, as well as his or her past
criminal record or law-abiding conduct, motivation for the
offense, nature of the offense, and the amount of violence
involved in the commission of the crime.20
Davis alleges that the district court’s sentence of life imprison-
ment was an abuse of discretion because the district court did
not seriously consider all of the relevant mitigating factors.
At the time of the shooting, Davis was 16 years old. he had
an unstructured homelife. The State had him removed from
16 See, State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008); State v. Timmens,
263 Neb. 622, 641 N.W.2d 383 (2002).
17 State v. Iromuanya, supra note 1. See State v. Thomas, 268 Neb. 570, 685
N.W.2d 69 (2004).
18 State v. Reid, supra note 16.
19 Id.; State v. Iromuanya, supra note 1.
20 State v. Timmens, supra note 16, 263 Neb. at 631, 641 N.W.2d at 390-91.
Accord State v. Iromuanya, supra note 1.
STATE v. DAVIS 	763
Cite as 276 Neb. 755

his biological mother’s home at age 5, and he had been in 17
different foster homes. he had been hospitalized five times for
various mental illnesses, including bipolar disorder, explosive
behavior, mixed personality disorder, active suicidal ideation,
and substance abuse and dependency. he also had a history of
mental and physical abuse.
Davis did not have any adult convictions before the shoot-
ing. But beginning at age 10, Davis had a history of incidents
with the police for criminal mischief, disturbing the peace,
theft, and assault. Davis also had a history of running away
from foster homes and not attending school. In sum, Davis
had an extensive history of behavioral problems and a lack of
respect for the law.
The court stated that while it was conscious of Davis’ history
of mental health problems and his unstable home life, it could
not overlook the casual disregard Davis had for Campbell’s
life. The court concluded that the evidence showed Davis shot
Campbell without provocation or justification, resulting in the
callous murder of Campbell. The court stated that any lesser
sentence under these circumstances, even when considering
the mitigating factors, would diminish the seriousness of the
crime. The court also feared that if Davis were to be eligible
for parole, he could be a continued threat to society.
Although Davis’ youth and troubled background might merit
some sympathy, we cannot ignore his gruesome crime. We
conclude that the district court did not abuse its discretion by
sentencing Davis to life imprisonment. We affirm Davis’ con-
victions and the sentences imposed.
A ffirmed.
764 	276 NEBrASKA rEPOrTS