Background
On November 13, 2022, at approximately 4:06 a.m., gunfire erupted at a party held in a converted commercial building in Omaha, Nebraska. Multiple shooters fired weapons inside the dark, crowded space. Karly Wood, a 20-year-old woman, was struck by eight separate gunshot wounds and died from her injuries. Eight other individuals were shot, including the defendant Imhotep A. Davis. Surveillance video recovered from school parking lots, the building, and a hospital showed Davis arrived at the scene, attended the party, and was later filmed at 4:07 a.m. running from the building while holding a handgun, which he then passed to another individual. A Glock 9mm handgun recovered from Davis’s vehicle was the only firearm located during the investigation and ballistics evidence established it fired 14 of 24 casings found at the scene.
The State charged Davis with seven felonies including second degree murder, first degree assault, two counts of use of a firearm to commit a felony, possession of a firearm by a prohibited person, unlawful possession of a firearm on school grounds, and tampering with evidence. Following jury trial, Davis was convicted of manslaughter (rather than the charged second degree murder), first degree assault, two counts of use of a firearm to commit a felony, possession of a firearm by a prohibited person, unlawful possession of a firearm on school grounds, and tampering with evidence. The district court sentenced Davis to an aggregate term of 129 to 162 years’ imprisonment.
The Court’s Holding
The Nebraska Court of Appeals rejected Davis’s claim that the trial court erred in failing to instruct the jury on self-defense. Davis argued he was shot first and therefore was entitled to a self-defense instruction. The court held that a self-defense instruction is warranted only when the evidence reasonably supports such a defense. Here, Davis presented no evidence regarding when he was shot, whether he was shot in the back, or who shot first. Critically, even assuming Davis was fired upon first, the court found the force he used was unjustified under the circumstances because he repeatedly fired his handgun in a dark, crowded area where the risk of hitting innocent bystanders was obvious. Davis pointed to no evidence that he believed his force was necessary to protect himself, nor could he show that his conduct was justified given the foreseeable risk of harming others. Accordingly, the court found no plain error in the trial court’s failure to give a self-defense instruction.
The court also rejected Davis’s challenge to jury instruction No. 7, which permitted the jury to find him guilty of manslaughter under either of two alternative theories—intentional killing without malice upon a sudden quarrel, or unintentional killing while committing first degree assault—without requiring unanimous agreement on which theory applied. The court held that manslaughter is a single offense that may be committed in multiple ways, and where evidence supports each method, the jury need only unanimously agree the defendant committed the offense; it need not unanimously agree which theory resulted in the violation. The instruction properly ensured that the jury would understand any guilty verdict required finding an intentional underlying felony, consistent with Nebraska law.
The court further rejected all of Davis’s ineffective assistance of counsel claims. Most claims failed because they were not sufficiently argued in Davis’s brief. The self-defense-based ineffective assistance claim failed because requesting such an instruction would have been meritless. The claim that counsel should have advised him to waive jury trial or plead no contest to the firearm possession counts failed because even removal of those counts would not have prevented impeachment by his prior felony convictions or changed the State’s evidence on the remaining counts.
Key Takeaways
- Self-defense does not justify use of force when the defendant fires repeatedly in a dark, crowded space where innocent bystanders are obviously at risk of being struck, regardless of whether the defendant was fired upon first.
- For a single crime that may be committed in multiple alternative ways, jury instructions need not require unanimous agreement on which method was used—only that the defendant committed the crime itself.
- Ineffective assistance of counsel claims must be both specifically assigned and specifically argued on appeal; claims restated without supporting argument are not reviewed by the appellate court.
Why It Matters
This decision clarifies the limits of self-defense in crowded environments and multi-shooter incidents. Even when a defendant may have been targeted by others, self-defense does not extend to indiscriminate return fire in a setting where innocent bystanders face obvious danger. The holding prevents self-defense from becoming a blanket justification for any response once a defendant is fired upon, requiring instead that the force used be proportionate, focused, and reasonably believed necessary—factors difficult to satisfy in chaotic mass-shooting scenarios.
The court’s treatment of alternative-theory jury instructions addresses an important constitutional question: when statutory crimes can be violated through multiple distinct methods, courts need not require jurors to unanimously agree on the precise method, provided they unanimously agree the defendant committed the offense and any required mental state is satisfied. This has practical significance for prosecutors charging defendants under statutes with multiple pathways to guilt, and for appellate review of jury instructions in complex multi-count cases.
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