Hess v. State

Nebraska Advance Sheets
HESS v. STATE 559
Cite as 287 Neb. 559Troy Hess, also known as Anthony Monjarez,
appellant, v. State of Nebraska, appellee.
___N.W.2d ___
Filed February 28, 2014. No. S-13-413.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
2. Tort Claims Act: Appeal and Error. The findings of fact of the trial court in a
proceeding under the State Tort Claims Act have the effect of jury findings and
will not be disturbed on appeal unless they are clearly wrong.
3. Statutes: Appeal and Error. Absent anything to the contrary, an appellate court
will give statutory language its plain and ordinary meaning.
4. ____: ____. When construing a statute, an appellate court must look to the
statute’s purpose and give to the statute a reasonable construction which best
achieves that purpose, rather than a construction which would defeat it.
5. Convictions: Sentences: Words and Phrases. Legal innocence is defined as the
absence of one or more procedural or legal bases to support the sentence given to
a defendant.
6. ____: ____: ____. Actual innocence refers to the absence of facts that are prereq­
uisites for the sentence given to a defendant.
7. Statutes. A court must attempt to give effect to all parts of a statute, and if it can
be avoided, no word, clause, or sentence will be rejected as superfluous.
8. Trial: Evidence: Appeal and Error. In a civil case, the admission or exclusion
of evidence is not reversible error unless it unfairly prejudiced a substantial right
of the complaining party.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Troy Hess, pro se.
Jon Bruning, Attorney General, and Linda L. Willard for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
Troy Hess filed a pro se action for compensation under the
Nebraska Claims for Wrongful Conviction and Imprisonment
Act (Act).1 The district court concluded that Hess failed to
1
Neb. Rev. Stat. §§ 29-4601 to 29-4608 (Cum. Supp. 2012).
Nebraska Advance Sheets
560 287 NEBRASKA REPORTS
show that he was innocent of the charges for which he claims
he was wrongfully convicted and dismissed Hess’ petition.
We affirm.
BACKGROUND
On October 30, 1985, Hess was charged with second degree
murder in the death of Michael Snell. Hess was found guilty
following a jury trial and was sentenced to 30 years’ imprison­
ment. His conviction was upheld on appeal.2
This court subsequently decided State v. Myers.3 In Myers,
we held that malice was an essential element of the crime of
second degree murder and that if the jury was not so instructed,
reversal of the conviction was required. In accordance with
Myers, an arrest of judgment was entered in November 1994
vacating Hess’ conviction and ordering retrial.
A few months prior to our decision in Myers, however, Hess
had been charged in Lancaster County District Court with
escape, kidnapping, felon in possession of a firearm, and two
counts of use of a weapon to commit a felony. He was tried
and found guilty on November 7, 1994, and sentenced on all
counts, including a life sentence for the kidnapping count. The
second degree murder charges with respect to Snell’s murder
were eventually dismissed.
On July 30, 2009, Hess filed a claim with the State Tort
Claims Board, asking for compensation under the Act. That
claim was denied. Hess filed suit against the State, alleging
that he was entitled to damages of $500,000 for his wrongful
conviction for second degree murder. Hess also requested the
appointment of counsel.
Hess’ request for the appointment of counsel was denied.
The State’s various motions for summary judgment on the
merits were denied. Trial was held on February 11, 2013. The
only disputed issue was whether Hess was innocent of the sec­
ond degree murder charge. Hess, relying on the presumption
of innocence in criminal cases, argued that he did not need to
2
State v. Hess, 225 Neb. 91, 402 N.W.2d 866 (1987).
3
State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled, State v.
Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
Nebraska Advance Sheets
HESS v. STATE 561
Cite as 287 Neb. 559prove his innocence. The district court rejected that argument.
After examining the bill of exceptions from Hess’ murder trial,
the district court found that Hess had not shown that he was
innocent of the murder, as required by the Act, and dismissed
Hess’ petition.
ASSIGNMENTS OF ERROR
On appeal, Hess assigns, restated and reordered, that the
district court erred in (1) requiring Hess to prove his inno­
cence; (2) not finding Hess innocent under the Act; (3) denying
his motion for counsel; and (4) considering exhibit 3, Hess’
Lancaster County convictions for escape, kidnapping, felon
in possession of a firearm, and use of a weapon to commit
a felony.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen­
dent conclusion irrespective of the determination made by the
court below.4
[2] The findings of fact of the trial court in a proceed­
ing under the State Tort Claims Act have the effect of jury
findings and will not be disturbed on appeal unless they are
clearly wrong.5
ANALYSIS
Wrongful Conviction Claim
In his first and second assignments of error, Hess argues
that the district court erred in finding that he had the burden
to show that he was innocent of second degree murder, and
further erred in finding that he was not innocent.
Section 29-4603 provides:
In order to recover under the . . . Act, the claimant
shall prove each of the following by clear and convinc­
ing evidence:
(1) That he or she was convicted of one or more
felony crimes and subsequently sentenced to a term of
4
State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).
5
McMullin Transfer v. State, 225 Neb. 109, 402 N.W.2d 878 (1987).
Nebraska Advance Sheets
562 287 NEBRASKA REPORTS
imprisonment for such felony crime or crimes and has
served all or any part of the sentence;
(2) With respect to the crime or crimes under sub­
division (1) of this section, that the Board of Pardons
has pardoned the claimant, that a court has vacated the
conviction of the claimant, or that the conviction was
reversed and remanded for a new trial and no subsequent
conviction was obtained;
(3) That he or she was innocent of the crime or crimes
under subdivision (1) of this section; and
(4) That he or she did not commit or suborn perjury,
fabricate evidence, or otherwise make a false statement
to cause or bring about such conviction or the conviction
of another, with respect to the crime or crimes under
subdivision (1) of this section, except that a guilty plea,
a confession, or an admission, coerced by law enforce­
ment and later found to be false, does not constitute
bringing about his or her own conviction of such crime
or crimes.
The crux of Hess’ argument appears to be that he does not
have the burden to show that he was innocent, as required by
§ 29-4603(3), because he is presumed innocent and the State
must prove his guilt.
[3,4] Hess is incorrect. First, it is clear that Hess, and claim­
ants in situations similar to that of Hess, has the burden to
show the various elements required under § 29-4603. Absent
anything to the contrary, an appellate court will give statutory
language its plain and ordinary meaning.6 When construing a
statute, an appellate court must look to the statute’s purpose
and give to the statute a reasonable construction which best
achieves that purpose, rather than a construction which would
defeat it.7
The opening paragraph of § 29-4603 provides that “the claim­
ant shall prove each of the following by clear and convincing
6
In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173(2012).
7
In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
Nebraska Advance Sheets
HESS v. STATE 563
Cite as 287 Neb. 559evidence.” And § 29-4602, the legislative findings for the Act,
states that “the Legislature intends by enactment of the . . . Act
that persons who can demonstrate that they were wrongfully
convicted shall have a claim against the state.” Clearly, the
burden lies with the claimant under the Act.
Nor does the presumption of innocence have any effect on
Hess’ burden under § 29-4603(3). As an initial matter, there
is no mention of the presumption of innocence in § 29-4603,
and more fundamentally, Hess’ reliance on the presumption of
innocence shows a misunderstanding of the definition of inno­
cence generally.
[5] There are two distinct definitions of innocence—legal
and actual. Black’s Law Dictionary defines legal innocence
as “[t]he absence of one or more procedural or legal bases to
support the sentence given to a defendant.”8 Legal innocence
is addressed in § 29-4603(2), in that the claimant must show
that he or she was pardoned, that the conviction was vacated,
or that the conviction was reversed and remanded for retrial
and no subsequent conviction was obtained. All of these go to
the “absence of one or more procedural bases [that] support
the [defendant’s] sentence.” The presumption of innocence fits
within the concept of legal innocence.
[6] “Actual innocence,” on the other hand, refers to “[t]he
absence of facts that are prerequisites for the sentence given to
a defendant.”9 This is what is addressed in § 29-4603(3). In lay
terms, actual innocence means that a defendant did not commit
the crime for which he or she is charged.
[7] If this court were to interpret subsection (3) as referring
to legal, as opposed to actual, innocence, then subsection (3)
would be repetitive of subsection (2). But a court must attempt
to give effect to all parts of a statute, and if it can be avoided,
no word, clause, or sentence will be rejected as superfluous.10
In other words, as is noted by the State, “Hess’s proposed
8
Black’s Law Dictionary 859 (9th ed. 2009).
9
Id.
10
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30(2013).
Nebraska Advance Sheets
564 287 NEBRASKA REPORTS
interpretation would make subsection (3) a tautology of sub­
section (2).”11 Under the provisions of § 29-4603, Hess must
show both types of innocence.
The presumption of innocence has no application or bearing
on the burden imposed upon a claimant under § 29-4603(3) of
the Act. The district court did not err in concluding that Hess
had the burden to show that he was innocent.
Nor did the district court err in finding that Hess had not
shown that he was actually innocent under § 29-4603(3). Hess
introduced one exhibit—the docket sheet from his second
degree murder conviction and its subsequent vacation and
dismissal. But such only goes to make a showing of legal inno­
cence under § 29-4603(2). Hess produced no evidence to show
that he was actually innocent of Snell’s murder.
Moreover, the State introduced the bill of exceptions from
Hess’ second degree murder trial. That bill tends to show that
Hess committed the crime for which he now alleges he was
wrongfully convicted. Hess’ conviction and sentence were
vacated on the basis of jury instructions regarding malice and
not as the result of any definitive conclusion about Hess’ guilt
in Snell’s death.
Hess’ first and second assignments of error are with­
out merit.
Appointment of Counsel
In his third assignment of error, Hess contends that the
district court erred in denying his request for the appointment
of counsel. In support of this assertion, Hess cites two Eighth
Circuit cases wherein parties appearing in forma pauperis were
appointed counsel in civil cases.12
As an initial matter, we note that a claim under the Act is
a civil action. The plain language of the Act provides that the
burden to show entitlement to recovery is on the person who
claims he was wrongfully convicted.13 And the Act provides
11
Brief for appellee at 10.
12
In re Lane, 801 F.2d 1040 (8th Cir. 1986); Johnson v. Williams, 788 F.2d
1319 (8th Cir. 1986).
13
§§ 29-4602 and 29-4603.
Nebraska Advance Sheets
HESS v. STATE 565
Cite as 287 Neb. 559that any claim must be brought in accordance with the State
Tort Claims Act,14 which is a civil remedy.15
There are limited situations in Nebraska where a civil litigant
might be entitled to the appointment of counsel. Of course, the
Nebraska Postconviction Act allows a court to appoint coun­
sel.16 We have also held that an indigent defendant jailed for
civil contempt is entitled to counsel,17 as is an indigent father
in a paternity action.18
But there is no provision in the Act for the appointment of
counsel. Nor do the Eighth Circuit cases cited by Hess provide
authority of the appointment of counsel. Federal law gives
certain discretion for the appointment of counsel for parties
appearing in forma pauperis.19 Nebraska law contains no simi­
lar provision.
The district court did not err when it denied Hess’ request
for counsel. Hess’ third assignment of error is without merit.
Exhibit 3
In his fourth and final assignment of error, Hess argues that
the district court erred in considering exhibit 3, Hess’ Lancaster
County convictions for escape, kidnapping, felon in possession
of a firearm, and use of a weapon to commit a felony. Exhibit
3 was admitted during a summary judgment hearing, but was
not offered or admitted at trial. The district court referenced
these prior convictions in setting forth the factual background
surrounding Hess’ claim.
Hess argues the district court concluded that because of
these prior convictions, Hess was not eligible for compensation
under the Act. But the district court made no such finding, and
14
§ 29-4607.
15
Neb. Rev. Stat. § 81-8,209 (Reissue 2008).
16
Neb. Rev. Stat. § 29-3004 (Reissue 2008).
17
Allen v. Sheriff of Lancaster Cty., 245 Neb. 149, 511 N.W.2d 125 (1994),
overruled on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, 279
Neb. 661, 782 N.W.2d 848 (2010).
18
Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757 (1988).
19
28 U.S.C. § 1915(e)(1) (2006).
Nebraska Advance Sheets
566 287 NEBRASKA REPORTS
in fact, its order specifically noted that these convictions were
unrelated. Hess’ argument is without merit.
[8] Even assuming that the district court erred in referenc­
ing exhibit 3, such was not reversible error. In a civil case,
the admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the com­
plaining party.20 A review of the order demonstrates that the
district court did not consider these convictions in reference
to the question presented—whether Hess had made the neces­
sary showing under § 29-4603 to obtain relief under the Act.
Instead, the district court’s dismissal of Hess’ petition was
based upon Hess’ failure to show by clear and convincing evi­
dence that he was innocent of second degree murder.
Hess’ fourth assignment of error is without merit.
CONCLUSION
The decision of the district court is affirmed.
Affirmed.
20
Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013).
In re I nterest of
Marcella G., a child
under 18
years of age.
State of Nebraska, Department of Health and Human
Services, appellant, v. Marcella G., appellee.
___ N.W.2d ___
Filed February 28, 2014. No. S-13-644.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
3. ____: ____. Absent anything to the contrary, an appellate court will give statutory
language its plain and ordinary meaning.
4. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous or
meaningless.