State v. Hinrichsen
| Decision Date | 05 February 2016 |
| Docket Number | No. S-14-083.,S-14-083. |
| Parties | State of Nebraska, Appellee, v. Matthew G. Hinrichsen, Appellant. |
| Court | Nebraska Supreme Court |
292 Neb. 611
877 N.W.2d 211
State of Nebraska, Appellee,
v.
Matthew G. Hinrichsen, Appellant.
No. S-14-083.
Supreme Court of Nebraska.
Filed February 5, 2016.
James R. Mowbray and Todd W. Lancaster, of Nebraska Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, and Cassel, JJ., and Bishop, Judge.
Heavican, C.J.
A jury convicted Matthew G. Hinrichsen of two counts of first degree murder for the killing of Victoria D. Lee and her husband, Gabino A. Vargas; one count of using a firearm to commit a felony; and one count of possessing a firearm during the commission of a felony. Hinrichsen denied that he intended to kill the victims.
On appeal, Hinrichsen primarily argues that because sudden quarrel provocation negates malice, the step instruction for first degree murder violated his right to due process. We conclude that when the jury found premeditated and deliberate malice beyond a reasonable doubt, it simultaneously found no sudden quarrel provocation beyond a reasonable doubt. Hinrichsen received due process, and his other arguments lack merit. We affirm his convictions and sentences.
I. BACKGROUND
1. HISTORICAL FACTS
Lee and Hinrichsen began dating in the fall of 2009. In approximately April 2011, they moved into the basement of Hinrichsen's parents' home in Ewing, Nebraska. Lee lived there until at least July 2012. Afterward, she continued to have an "on-again-off-again" relationship with Hinrichsen and still had belongings at the Ewing home. After July, Lee would sometimes stay in Ewing or with her parents in Iowa. At other times, she would spend time in Omaha, Nebraska, where she was taking college courses.
Around the end of 2011, Vargas moved to Ewing to work on a dairy farm located about 2 miles from the Hinrichsens' home. Beginning in midsummer 2012, Lee began to come to the farm to help Vargas. In about September, Vargas began
living in a mobile home on the dairy farm. According to Vargas' roommate, Lee would sometimes stay with Vargas in the mobile home.
Lee and Vargas married on October 22, 2012. But Lee continued to live at the Hinrichsen house part time until October 29, when she moved her things out. On that date, Lee informed Hinrichsen for the first time of her marriage to Vargas. Hinrichsen testified that he and Lee were still romantically involved up until October 29. After October 29, Lee either stayed with Vargas in Ewing or with her parents in Iowa.
During November 2012, Hinrichsen made numerous telephone calls to Lee which were preserved on a digital recorder found in Lee's belongings. In the recordings, Hinrichsen threatened to harm Lee and Vargas and expressed his hatred of Vargas. On November 30, Hinrichsen purchased an AK–47 assault rifle and ammunition.
The homicides occurred during the early morning hours of December 8, 2012. Hinrichsen testified that on December 7, he had "a couple of" mixed drinks at his parents' house late in the afternoon. He then went to a bar in Orchard, Nebraska, where he continued to drink alcohol. Around 6:30 p.m., he made two telephone calls to Lee. He then called his cell phone provider to suspend service to Lee's cell phone, which was still part of his cell phone service plan. The Orchard bartender testified that Hinrichsen spent hundreds
of dollars on Keno and told her, " ‘I can't take it to the grave.’ "
At approximately 9 or 10 p.m., Hinrichsen left Orchard and went to a bar in Ewing, where he continued to drink alcohol. He also bought wine or champagne and shared it with other bar patrons, something he did not normally do. Hinrichsen left that bar a little before midnight. At 12:17 a.m., Lee called a 911 emergency dispatcher and reported that someone with a gun was at her house. A recording of the 911 call was admitted into evidence. In the background of the recording, Hinrichsen can be heard yelling, "Die, you fucking bitch. Fucking die. Rot in hell. Fucking die. Fucking burn in hell."
Hinrichsen's profanities continue for about 1 1/2 minutes, and then the recording goes silent. Because Lee's cell phone had been deactivated, the dispatcher could not pinpoint her exact location and instead dispatched officers to the general area. Shortly thereafter, a 911 call reported a fire in the mobile home where Lee and Vargas lived. At 12:33 a.m., Hinrichsen texted a friend: "I'm fucking done with life I love you man good luck."
Hinrichsen arrived at his parents' property around 1 a.m. When his father encountered him, Hinrichsen was naked and told his father that he had killed Lee and Vargas and burned the evidence, including their bodies and his clothes. Hinrichsen also left a suicide note for his parents. When law enforcement officers arrived a short time later and encountered Hinrichsen on the property, he was wearing only a rain poncho and was carrying an automatic pistol. Hinrichsen yelled things at the officers, including " ‘[k]ill me.... I don't deserve to live.’ " Hinrichsen's father got the gun away from Hinrichsen before the officers arrested him. Officers then put out a fire in a burn barrel and found the clothes Hinrichsen had been wearing that evening. Officers also found an AK–47 rifle and ammunition hidden on the property, as well as a bloody coat. In the vehicle that Hinrichsen had been driving, officers found blood on the console and an empty magazine clip.
At trial, Hinrichsen admitted that he had killed Lee and Vargas. He testified, however, that he did not intend to kill them. According to Hinrichsen, he did not even know that Lee was at Vargas' house on December 7, 2012, because she had texted him earlier that day and said that she was going to Iowa. Hinrichsen explained that at approximately 5 p.m. on December 7, he saw that Lee had changed her surname on a social media site and became upset. At that point, he decided to go to the bars. Around midnight, he got sick and decided to go home. On the way home, he decided to go to Vargas' home to scare him into moving away. Hinrichsen had an AK–47 rifle and a .22–caliber pistol with him because he had planned to go hunting.
When he arrived at Vargas' home, he saw Lee's car in the driveway and "lost control" because Lee had said she was going to Iowa. Because he was angry, he rammed Vargas' vehicle twice. Hinrichsen testified that he then grabbed the AK–47 rifle and took it with him to the door of the residence to intimidate Vargas.
Hinrichsen yelled and beat on the door, but it was locked. He shot out the window and unlocked the door. He then beat on Vargas' bedroom door, but it was either locked or being held shut. Hinrichsen fired two shots into the door, and after doing so, was able to push his way into the room. He found Vargas lying in a pool of blood on the floor by the door and not moving. An autopsy showed Vargas died as a result of gunshot wounds to the chest. Hinrichsen then saw Lee on the telephone asking for help as she knelt naked by the
bed. According to Hinrichsen, her nakedness made him angrier. He went toward her, and Lee fell, either when she tried to run around the bed or when he shoved her. When Lee fell, Hinrichsen began hitting her with the barrel and the butt of the AK–47 rifle. An autopsy showed Lee died as a result of blunt force trauma to her head.
At some point, Hinrichsen set Vargas' residence on fire. Hinrichsen claimed he did not do so immediately after the attack, but instead first drove to his parents' home where he decided to shoot himself, but then realized the AK–47 was not functional. At that point, the killings seemed "surreal" to him, so he drove back to Vargas' home to see if Lee and Vargas were really dead. According to Hinrichsen, the scene was "pretty gruesome" and he "didn't want to leave that behind," so he set the residence on fire. When he returned to his parents' house, he left a suicide note for his parents and tried to burn his bloody clothes because he "didn't want anybody to find me like that." He hid the AK–47 rifle in the attic, put on a rain poncho, and grabbed the .22–caliber pistol with the thought of killing himself with the pistol. Hinrichsen changed his mind after realizing the bullet would probably only be big
enough to hurt him, but not kill him. When he saw a sheriff's vehicle, he began yelling profanities and asking officers to shoot him.
2. PROCEDURAL HISTORY
Before trial, Hinrichsen submitted a written motion asking the court to instruct the jury on the defense of intoxication. The court overruled the motion after finding that Neb.Rev.Stat. § 29–122 (Cum.Supp. 2014) eliminated the intoxication defense in Nebraska. The court rejected Hinrichsen's argument that § 29–122 was unconstitutional because...
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