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State v. Dubray

Supreme Court of Nebraska

October 10, 2014

STATE OF NEBRASKA, APPELLEE,
v.
DOMINICK L. DUBRAY, APPELLANT

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Appeal from the District Court for Box Butte County: TRAVIS P. O'GORMAN, Judge.

James R. Mowbray and Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. MILLER-LERMAN, J., concurring in the result.

OPINION

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[289 Neb. 211] Connolly, J.

I. SUMMARY

The State charged Dominick L. Dubray with two counts of first degree murder for killing Catalina Chavez and Mike [289 Neb. 212] Loutzenhiser, and two related counts of use of a deadly weapon to commit a felony. The bizarre, bloody scene revealed that the victims died from multiple stab wounds. Dubray's defense centered on his claims that the evidence showed he had killed the victims in self-defense or upon a sudden quarrel. A jury found Dubray guilty of all four counts. The court sentenced him to terms of life imprisonment for each of the murder convictions and to terms of 30 to 40 years' imprisonment for each of the use of a deadly weapon convictions, with all terms to be served consecutively. This is Dubray's direct appeal.

Dubray assigns trial errors related to an evidentiary ruling, a jury instruction, prosecutorial misconduct, and his trial counsel's performance. We conclude that his claims are either without merit or do not constitute reversible error. We affirm.

II. BACKGROUND

These murders occurred on Saturday morning, February 11, 2012. Dubray and Chavez had lived together for 2 to 3 years in Alliance, Nebraska, with their child and Chavez' older child from a previous relationship. Chavez' 16-year-old half brother, Matthew Loutzenhiser (Matthew), had also been living at their house since June 2011. Loutzenhiser, who lived in Scottsbluff, Nebraska, was Chavez' stepfather and Matthew's father.

On Friday, February 10, 2012, Loutzenhiser arrived in Alliance for a visit. Dubray worked that day from 5 a.m. to 1 p.m. Matthew was scheduled to work that night, and Chavez asked Dubray's mother to watch her two children overnight while the adults went out. Dubray went to a club with Chavez and Loutzenhiser around 8 p.m. They stayed there drinking alcoholic beverages until 1 a.m. and then went to Dubray's aunt's home and continued drinking with four other people until about 6 a.m. Loutzenhiser walked with Dubray and Chavez back to their nearby house. A business surveillance camera captured them walking back to the house around 6 a.m.

Matthew fell asleep around 1 a.m. in his bedroom, located off of the living room.

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He testified that he heard yelling [289 Neb. 213] through his closed door before 6 a.m. but that he ignored the yelling because he thought the adults were intoxicated.

According to Dubray's cousin, Carlos Reza, Dubray called Reza at 6:49 a.m. Dubray said, " 'I love you, Bro. Take care of my daughter.'" He said that he was going to kill himself and that he had two dead bodies in the house. Reza immediately dressed and drove to Dubray's house, which was about 5 minutes away. En route, he called another cousin, Marco Dubray (Marco), who also drove to Dubray's house.

When Reza entered the house, he immediately saw Loutzenhiser's motionless body lying against the living room couch with a lot of blood under him. Reza began screaming for Dubray and walked into his bedroom. He found Dubray, covered in blood, lying on the floor by his bed. The television was knocked over, the mattress was sideways, and clothes were all over the room. Dubray did not move initially, but he got up in response to Reza's yelling and walked into the kitchen.

When Reza asked what happened, Dubray began crying and shaking his head. He told Reza that Chavez was going to leave him. At some point, Dubray said, " 'I can't believe what I have done.'" Dubray told Reza that he had tried to kill himself because he did not want to go to prison. He showed Reza a stab wound to the left of his heart where he had tried to kill himself. Reza could also see a cut on Dubray's neck and blood dripping on the back of his neck. Dubray picked up a clean knife and told Reza that he was going to kill himself, but he put the knife down on the kitchen table.

Marco arrived 5 or 10 minutes after Reza. When Marco entered, he saw Loutzenhiser's body in the living room and Dubray and Reza standing by the kitchen table. When Marco asked what happened, Dubray responded, " 'I don't know. I snapped. And I just [want to kill] myself.'"

Marco and Reza were asking aloud what they should do, and Dubray responded, " 'I just want to die. I don't want to go to prison.'" At this point, Reza said that he was going to call Lonnie Little Hoop, who was Dubray's and Reza's uncle. But Dubray told Reza not to call Little Hoop. He then told Marco and Reza to both go outside. They told Dubray that [289 Neb. 214] they loved him and went outside, intending to let him kill himself. While Marco and Reza were outside, they decided to seek help. They both said they went next door to ask Dubray's father for help, but he was apparently unavailable. Reza then called Little Hoop. While waiting for Little Hoop, Reza said he heard Dubray screaming inside and believed that the screaming was coming from Dubray's bedroom.

Little Hoop said that he received Reza's call about 7:05 a.m. and that he lived 3 to 4 minutes away. When he got there, Little Hoop and Reza entered the house and Little Hoop called for Dubray. Dubray was lying on the floor by his bed again, but this time with a knife in his back. When Little Hoop called him, Dubray pushed his upper body up and leaned against the bed. Dubray told Little Hoop the same thing that he had said to Marco and Reza, i.e., that he did not want to live anymore and did not want to go to jail. When Dubray lay back down, Little Hoop could see a body under him. Little Hoop told Dubray not to move until he got help and told Reza to call an ambulance.

Reza saw two patrol cars close by and ran over to the officers to request an ambulance. One of the officers was State Patrol Trooper Craig Kumpf, and the other one was Officer Matthew Shannon with

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the Alliance Police Department. Shannon requested an ambulance, and then the two officers entered the house. Shannon said he saw wounds to Loutzenhiser's neck and shoulder and could not detect signs of life. Kumpf said Loutzenhiser's neck was nearly severed. The officers followed a trail of blood through the kitchen to the bedroom. Dubray was still lying on the floor with a knife in his back. Shannon moved closer and saw a smaller, motionless female under his body. After finding the three bodies, the officers discovered Matthew in the closed bedroom off the living room and placed him in a patrol car.

The ambulance arrived at 7:22 a.m. Loutzenhiser, Chavez, and Dubray were all initially pronounced dead at the scene; the supervising emergency medical technician could not detect Dubray's pulse, and there were no signs of breathing or response to stimulation. The emergency medical personnel then left the house. But while taking photographs, Shannon saw [289 Neb. 215] Dubray move and heard him moan when Shannon called his name. Shannon called back the emergency medical personnel, who pulled Dubray from the area between the bed and the wall. There was a knife on the floor, and a knife impaled in the right side of Dubray's back. While readying Dubray for a move, the bedsheet moved and they found another knife. When they got outside, they put Dubray in a gurney, and Dubray then pulled the knife out of his back and dropped it. He was taken to the emergency room at the county hospital.

Because the evidence of Dubray's injuries is relevant to his defenses and ineffective assistance claims, we recount that evidence in detail. A trauma surgeon diagramed Dubray's 17 stab wounds or lacerations. Dubray had nine lacerations on his neck. The surgeon considered three of the stab wounds to his body to be potentially life threatening. During exploratory surgery, however, the surgeon determined that only the stab wound near Dubray's heart was life threatening. He considered the other wounds, including the neck lacerations, to be superficial, meaning that they might require stitches or similar care, but not surgery. The surgeon saw no blackening under Dubray's eyes or behind his ears that would have indicated a skull fracture, and a CAT scan revealed no trauma to his head. After stabilizing Dubray, the surgeon sent him to a hospital in Denver, Colorado, for surgical treatment of his chest wound. He was sedated for this trip and accompanied by his sister. She testified that she and other family members saw him in the intensive care unit about noon the next day and that Dubray was sitting up and talking.

While the police were interviewing Reza, he learned that Dubray had been transported to the Denver hospital. Reza went to the hospital with others the next morning to see Dubray. He said Dubray had two black eyes and a crooked nose. Dubray's aunt, sister, and mother gave similar testimony about his appearance. Reza was shown a photograph of Dubray that the prosecutor said was taken 2 days after Reza saw him. But Reza denied that the depiction reflected Dubray's appearance when he saw Dubray because it did not show his " fat lips" or black eyes. Reza said that when he saw Dubray, Dubray was sedated, his hands were secured to the bed, and he would [289 Neb. 216] come in and out of consciousness. During this visit, Dubray told Reza that he had " fucked up."

The pathologist who performed the forensic autopsies of Chavez' and Loutzenhiser's bodies found 22 stab wounds or cuts to Loutzenhiser's body: three in his neck, five in his chest, four in his upper extremities, and 10 in his posterior neck

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and upper back. The pathologist explained that the depth of some wounds, which were deeper than the length of the knife blade, indicated the force with which the knife had been thrust into Loutzenhiser's body. The pathologist found 19 stab wounds or cuts to Chavez' body: 10 wounds to her neck, one to her chest, one to her abdomen, one to her shoulder, numerous wounds to her upper back and posterior neck, and defensive wounds to her hands.

At trial, the court instructed the jury on the elements of first degree murder and the lesser-included offenses of second degree murder and manslaughter. In addition, the court instructed the jury that it must find that Dubray did not act in self-defense. The jury returned a verdict of guilty for both counts of first degree murder and both counts of use of a weapon to commit a felony.

III. ASSIGNMENTS OF ERROR

Dubray's nine assignments of error fall into three categories, with some factual overlap: trial court error, prosecutorial misconduct, and ineffective assistance of counsel. Regarding the trial court's actions, Dubray assigns that under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), the court erred in admitting cumulative, misleading, and gruesome photographs, despite their prejudicial effect. Relatedly, he assigns that his trial counsel was ineffective to the extent that he failed to object to the court's admission of the photographs.

Regarding the State's actions, Dubray assigns prosecutorial misconduct in the prosecutor's closing argument and questioning of witnesses. He also assigns that his trial counsel was ineffective in failing to object to this alleged misconduct.

Regarding his trial attorney's actions, Dubray assigns that in addition to failing to preserve the above trial errors, his attorney was ineffective as follows:

[289 Neb. 217] (1) failing to move to suppress Dubray's involuntary statements;

(2) failing to request a jury instruction on intoxication or to challenge the constitutionality of Neb. Rev. Stat. § 29-122 (Cum. Supp. 2012);

(3) failing to object to the court's jury instruction defining sudden quarrel;

(4) failing to call Megan Reza to testify that Chavez kept one of the knives used in the murder in her bedroom for self-protection; and

(5) failing to subpoena Jonathan Stoeckle, an ...


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