State v. Walls

the contract can be canceled only for cause. See § 79-827. If
a hearing is requested, nonrenewal requires only an informal
hearing, see § 79-834, while cancellation mandates a formal
due process hearing, see §§ 79-827 and 79-832. In the case
before us, the board’s notice specified the grounds which it
claimed constituted cause for cancellation. Had Schiefelbein
requested a hearing on cancellation, the board would have been
required to present sufficient evidence to support a cancellation
of his contract and judicial review would have been available
from an adverse decision. Because he did not request a hear-
ing on cancellation, the board was empowered to make a final
determination without presenting such proof.
CONCLUSION
We 	assume 	without 	deciding 	that 	a 	provision 	of
Schiefelbein’s contract required any notice of nonrenewal to
be given by February 15, 2007, that the board failed to timely
do so, that the notice given on March 26 was ineffective as
a notice of nonrenewal, and that the contract was automati-
cally renewed for the ensuing year by operation of law. We
conclude that on March 26, the board simultaneously gave
notice of possible cancellation of the contract, that the notice
complied with the statutory requirements, that Schiefelbein
failed to timely request a hearing on cancellation, and that
the board took the necessary action to cancel the contract. We
affirm the judgment determining that Schiefelbein’s contract
was validly canceled.
A ffirmed .
S tAte of N ebrASkA, Appellee , v .
rAymoNd C. WAllS, AppellANt .
756 N.W.2d 542
Filed October 7, 2008. 	No. A-07-1376.
1. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
90 	17 NeBrASkA AppeLLAte repOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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3. Jury Instructions: Proof: Appeal and Error. to establish reversible error from
a court’s refusal to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction.
4. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective
assistance of counsel raised for the first time on direct appeal do not require
dismissal ipso facto; the determining factor is whether the record is sufficient to
adequately review the question. When the issue has not been raised or ruled on at
the trial court level and the matter necessitates an evidentiary hearing, an appel-
late court will not address the matter on direct appeal.
5. Criminal Law: Words and Phrases. the test for recklessness as statutorily
defined in Neb. rev. Stat. § 28-109(19) (Cum. Supp. 2006) is purely objective.
6. Courts. Vertical stare decisis compels inferior courts to follow strictly the deci-
sions rendered by courts of higher rank within the same judicial system.
7. ____. pursuant to the doctrine of stare decisis, the Nebraska Court of Appeals
is compelled to follow the law as it has been pronounced by the Nebraska
Supreme Court.
8. Jury Instructions. Whenever an applicable instruction may be taken from the
Nebraska Jury Instructions, that instruction is the one which should usually be
given to the jury in a criminal case.
9. Postconviction: Effectiveness of Counsel: Appeal and Error. When a defend-
ant was represented both at trial and on direct appeal by the same lawyers, the
defendant’s first opportunity to assert ineffective assistance of trial counsel is in a
motion for postconviction relief.
10. Effectiveness of Counsel: Time: Appeal and Error. Claims of ineffective assist-
ance of counsel raised on direct appeal by the same counsel that represented the
defendant at trial are premature.
Appeal from the District Court for Lancaster County: S teveN
d. burNS, Judge. Affirmed.
Dennis r. keefe, Lancaster County public Defender, and
robert G. Hays for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
iNbody, Chief Judge, and moore and CASSel, Judges.
iNbody, Chief Judge.
INtrODUCtION
raymond C. Walls appeals his conviction of third degree
assault on an officer, contending that the district court erred in
giving its jury instruction defining “reckless” and in refusing
StAte v. WALLS 	91
Cite as 17 Neb. App. 90

to give his proposed jury instruction defining “recklessly.” He
also contends that he received ineffective assistance of trial
counsel. For the reasons set forth herein, we affirm Walls’ con-
viction and sentence.
StAteMeNt OF FACtS
On September 26, 2006, Lincoln police officer Conan
Schafer was working as a bicycle patrol officer in the down-
town area of Lincoln, Nebraska. At approximately 2:50 p.m.,
he contacted an individual after observing him drinking alcohol
in public in an alcove just to the west of 1421 p Street. While
Shafer was attempting to arrest the individual for that offense,
the individual swore at Schafer and called him a racist. Walls,
who had been uninvolved in the incident, approached Schafer,
inquiring about the situation because he had overheard the
individual call Schafer a racist. Schafer directed Walls to back
up, as Walls was about 5 feet away from Schafer. According
to Schafer, he did not want someone behind him while he was
making the arrest, due to the dangerousness of such a situa-
tion. Walls did not comply with Schafer’s repeated requests to
step back.
At this time, Lincoln police officer Sid Yardley arrived to
assist Schafer, and the aforementioned individual was arrested
and placed in the back seat of Yardley’s cruiser. Schafer pointed
at Walls and said to Yardley, “[H]e’s getting a ticket.” As
Schafer began walking toward Walls, Walls turned and headed
inside the building located at 1421 p Street. When Schafer
got inside the door, Walls ran up the stairs. Although Schafer
yelled at Walls to stop and to inform him that he was under
arrest, Walls did not stop and continued to his apartment door.
Schafer caught up with Walls just as Walls was putting a key in
his apartment door. Schafer grabbed Walls’ arm and told him
that he was under arrest. A struggle ensued, with Walls forcing
Schafer to the floor with Walls’ hands around Schafer’s neck.
Yardley heard a scuffle and assisted Schafer by placing Walls
in a lateral vascular neck restraint and pulling Walls off of
Schafer. As a result of the incident, Schafer suffered scratches
on his Adam’s apple area, on the right side of his neck, directly
under his chin, and on the right side of his chin. He also had
92 	17 NeBrASkA AppeLLAte repOrtS

an abrasion on his knee, and his “right shoulder area was sore
for a couple of days.”
Walls was charged with third degree assault on an officer,
in violation of Neb. rev. Stat. § 28-931 (Cum. Supp. 2006).
A jury trial was held in September 2007. Schafer and Yardley
testified to the facts as previously set forth. Walls testified that
he grabbed onto Schafer to prevent himself from tripping and
that he had no intention of fighting with Schafer.
During the jury instruction conference, Walls objected to the
district court’s proposed jury instruction defining “reckless” as
“the disregarding of a substantial and unjustifiable risk that . . .
Schafer [would] be injured in the circumstances in which dis-
regarding this risk was a gross deviation from what a reason-
able, law-abiding person would have done.” Walls proposed the
following jury instruction defining “recklessly”:
recklessly shall mean acting with respect to a mate-
rial element of an offense when any person disregards a
substantial and unjustifiable risk that the material element
exists or will result from his or her conduct. the risk
must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circum-
stances known to the actor, its disregard involves a gross
deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation.
the district court overruled Walls’ objection to the court’s
instruction, denied Walls’ proposed jury instruction, and gave
its original instruction to the jury. the jury convicted Walls of
the charged offense, and thereafter, Walls was sentenced to 2
years’ probation with a term of 120 days’ jail as a condition of
that probation. Walls has timely appealed to this court.
ASSIGNMeNtS OF errOr
Walls contends that the district court erred in giving its jury
instruction defining “reckless” and in refusing to give his pro-
posed jury instruction defining “recklessly.” He also contends
that he received ineffective assistance of trial counsel.
StANDArD OF reVIeW
[1,2] Whether jury instructions given by a trial court are cor-
rect is a question of law. State v. Anderson, 269 Neb. 365, 693
StAte v. WALLS 	93
Cite as 17 Neb. App. 90

N.W.2d 267 (2005). On a question of law, an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below. State v. Furrey, 270 Neb. 965,
708 N.W.2d 654 (2006).
[3] to establish reversible error from a court’s refusal to give
a requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the
law, (2) the tendered instruction is warranted by the evidence,
and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction. State v. Moore, 276 Neb. 1, 751
N.W.2d 631 (2008).
[4] Claims of ineffective assistance of counsel raised for the
first time on direct appeal do not require dismissal ipso facto;
the determining factor is whether the record is sufficient to
adequately review the question. When the issue has not been
raised or ruled on at the trial court level and the matter necessi-
tates an evidentiary hearing, an appellate court will not address
the matter on direct appeal. State v. Jones, 274 Neb. 271, 739
N.W.2d 193 (2007).
ANALYSIS
Jury Instructions.
Walls’ first two assignments of error are that the district
court erred in giving its jury instruction defining “reckless”
and in refusing to give his proposed jury instruction defin-
ing “recklessly.”
Walls’ proposed jury instruction mirrored the statutory lan-
guage of Neb. rev. Stat. § 28-109(19) (Cum. Supp. 2006),
which defines “recklessly” as follows:
recklessly shall mean acting with respect to a material
element of an offense when any person disregards a sub-
stantial and unjustifiable risk that the material element
exists or will result from his or her conduct. the risk
must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circum-
stances known to the actor, its disregard involves a gross
deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation.
In contrast, the district court’s jury instruction, based on the
definition of “reckless” contained in NJI2d Crim. 4.0e, defined
94 	17 NeBrASkA AppeLLAte repOrtS

“reckless” as “the disregarding of a substantial and unjustifiable
risk that . . . Schafer [would] be injured in the circumstances in
which disregarding this risk was a gross deviation from what a
reasonable, law-abiding person would have done.”
[5] Walls argues that the statutory definition of “recklessly”
required the jury to take into consideration the defendant’s
purpose and the circumstances known to him, i.e., a subjective
element; that the jury instruction given by the district court
did not do so; and that his proposed jury instruction did do so.
However, the Nebraska Supreme Court has specifically rejected
the position that the statutory definition of “recklessly” con-
tains a subjective element in State v. Kistenmacher, 231 Neb.
318, 323, 436 N.W.2d 168, 171 (1989), in which the court
held that “the test for recklessness as statutorily defined in
§ 28-109(19) is purely objective.” Although Walls recognizes,
and cites to, the Kistenmacher decision in his brief, he argues
that Kistenmacher was wrongly decided.
[6,7] Vertical stare decisis compels inferior courts to fol-
low strictly the decisions rendered by courts of higher rank
within the same judicial system. Sanford v. Clear Channel
Broadcasting, 14 Neb. App. 908, 719 N.W.2d 312 (2006).
pursuant to the doctrine of stare decisis, this court is compelled
to follow the law as it has been pronounced by the Nebraska
Supreme Court. As such, the jury instruction given by the dis-
trict court, which contains a purely objective test of reckless-
ness, was proper.
[8] Furthermore, as Walls admits in his brief, the jury
instruction given by the district court followed the pattern
jury instruction of NJI2d Crim. 4.0e. Whenever an applicable
instruction may be taken from the Nebraska Jury Instructions,
that instruction is the one which should usually be given to
the jury in a criminal case. State v. Molina, 271 Neb. 488, 713
N.W.2d 412 (2006). thus, the jury instruction given by the
district court was a correct statement of the law, and by giving
the pattern jury instruction definition of “reckless,” the district
court avoided using “the horrendously complicated definition
of the term ‘recklessly’ contained in § 28-109(19).” See State v.
Pribil, 224 Neb. 28, 32, 395 N.W.2d 543, 547 (1986). But see
State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002) (Nebraska
StAte v. WALLS 	95
Cite as 17 Neb. App. 90

Supreme Court noted that trial court’s instructing jury using
statutory definition of “recklessly” was proper). Consequently,
we find Walls’ claims that the district court erred in giving
its jury instruction defining “reckless” and in refusing to give
his proposed jury instruction defining “recklessly” to be with-
out merit.
Ineffective Assistance of Counsel.
Walls also contends that he received ineffective assistance of
trial counsel on the following basis:
1) trial counsel did not prepare to defend him in
this case;
2) trial counsel told defendant he did not have time to
prepare his case for trial;
3) trial counsel told defendant that he would call the
prosecutor to ask him to put the case behind because the
defendant was not going to turn out to be who the officers
indicated he was;
4) Defendant was dragged into an all white jury trial
against his will;
5) Defendant wanted a bench trial because he thought
he would have a better chance;
6) trial counsel likes jury trials and left defendant
without a choice, and violated his constitutional rights;
7) Defendant was the only black person in the court
and felt like he was being lynched by a white mob;
8) trial counsel neglected to use the information defend-
ant presented to him to prepare for trial; and
9) Because trial counsel neglected to use the informa-
tion provided by defendant, defendant had to spend 120
days in jail and 2 years on probation, which is causing
him to lose out on a cleaning contract with the University
of Nebraska, not complete his psychology degree on time
and not start his on-line bachelor of science in manage-
ment degree.
Brief for appellant at 22-23.
[9,10] We note that Walls was represented by the same attor-
neys at trial and on direct appeal. When a defendant was rep-
resented both at trial and on direct appeal by the same lawyers,
96 	17 NeBrASkA AppeLLAte repOrtS

the defendant’s first opportunity to assert ineffective assistance
of trial counsel is in a motion for postconviction relief. State v.
Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008). therefore, claims
of ineffective assistance of counsel raised on direct appeal by
the same counsel that represented the defendant at trial are pre-
mature and we decline to address them.
CONCLUSION
In sum, we find that Walls’ claimed errors regarding jury
instructions are without merit and that his claims of ineffective
assistance of counsel are premature. therefore, Walls’ convic-
tion and sentence are affirmed.
A ffirmed .
StAte v. WALLS 	97
Cite as 17 Neb. App. 90