State v. Dean

• Decision Date: 18 November 1994
• Docket Number: No. S-93-929,S-93-929
• Parties: STATE of Nebraska, Appellee, v. JaRon DEAN, Appellant.
• Court: Nebraska Supreme Court

Page 681

523 N.W.2d 681

246 Neb. 869

STATE of Nebraska, Appellee, v. JaRon DEAN, Appellant.

No. S-93-929.

Supreme Court of Nebraska.

Nov. 18, 1994.

Syllabus by the Court

1. Collateral Estoppel. The applicability of the doctrine of collateral estoppel constitutes a question of law.

2. Judgments: Appeal and Error. With regard to a question of law, an appellate court is obligated to reach a conclusion independent from the lower court's conclusion.

3. Criminal Law: Judgments: Collateral Estoppel: Double Jeopardy. When an identical issue was decided in a prior

action, there was a judgment on the merits which was final, the party against whom the doctrine is to be applied is a party or is in privity with a party to the prior action, and there was an opportunity to fully and fairly litigate in the prior litigation, concepts of double jeopardy may make collateral estoppel applicable in a criminal case.

4. Criminal Law: Collateral Estoppel: Proof: Double Jeopardy. A criminal defendant, relying on collateral estoppel in relation to constitutional protection against double jeopardy in a present proceeding, has the burden to prove that the particular issue which is sought to be relitigated, but which is constitutionally foreclosed by the Double Jeopardy Clause, was necessarily or actually determined in a previously concluded criminal proceeding.

5. Constitutional Law: Criminal Law: Collateral Estoppel. Nonmutual collateral estoppel is not afforded a nonparty criminal defendant by either the federal or Nebraska Constitutions.

6. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's findings of fact unless those findings are clearly erroneous.

7. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will not reweigh or resolve conflicts in the evidence.

8. Constitutional Law: Right to Counsel. The Fifth Amendment to the U.S. Constitution includes the right to be assisted by counsel during custodial interrogation.

9. Constitutional Law: Right to Counsel. The Sixth Amendment to the U.S. Constitution gives one accused of a crime the right to the assistance of counsel.

10. Constitutional Law: Right to Counsel. Under Neb. Const. art. I, § 11, one accused of a crime has the right to appear and defend in person or by counsel.

11. Constitutional Law: Right to Counsel: Waiver. An effective waiver of an accused's Fifth Amendment right to counsel has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception; second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

12. Constitutional Law: Right to Counsel: Waiver. A waiver of the Sixth Amendment right to counsel is valid only when it reflects an intentional relinquishment or abandonment of a known right or privilege; therefore, the key inquiry is whether one who waived the Sixth Amendment right was sufficiently aware of the right to have counsel present during questioning and of the possible consequences of a decision to forgo the aid of counsel.

13. Constitutional Law: Right to Counsel: Waiver. Neither the Fifth Amendment nor the Sixth Amendment right to counsel is superior to or greater than the other, and it is no more difficult to waive the Sixth Amendment right than it is to waive the Fifth Amendment right.

14. Expert Witnesses: Appeal and Error. The admission of expert testimony is ordinarily within the discretion of the trial court, and its ruling will be upheld in the absence of an abuse of discretion.

15. Rules of Evidence: Expert Witnesses. Under Neb.Rev.Stat. § 27-702 (Reissue 1989), Neb.Evid.R. 702, when the proffered opinion evidence relates to a topic which has been judicially recognized as a proper subject for expert testimony, the trial court need only consider whether this evidence will aid the jury in deciding the particular issues in the case; however, when a trial court is faced with an offer of a novel form of expertise which has not yet received judicial sanction, the trial court must determine as an initial matter whether the new technique or principle is sufficiently reliable as to aid the jury in reaching accurate results.

16. Rules of Evidence: Expert Witnesses. The admissibility of an expert's testimony, including an opinion, which is based on a scientific principle or is based on a technique or process which utilizes or applies a scientific principle, depends on general acceptance of the principle, technique, or process in the relevant scientific community.

17. Expert Witnesses. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), does not apply to state court decisions; this state adheres to the standard for admitting expert scientific evidence accorded in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

18. Rules of Evidence: Words and Phrases. Evidence of a test result cannot be characterized as "scientific" or qualify as "technical or other specialized knowledge," and thus within the purview of Neb.Evid.R. 702, Neb.Rev.Stat. § 27-702 (Reissue 1989), unless and until it is established that the test result demonstrates what it is claimed to demonstrate.

19. Homicide: Intent. Malice is an essential element of murder in the second degree.

20. Intent. Whether malice exists is a factual issue.

21. Judgments. Whether a finding is sufficient to support a judgment is a question of law.

22. Homicide: Intent: Circumstantial Evidence. Malice concerns the killer's state of mind and may thus be inferred from the words and acts of the defendant, the circumstances surrounding his or her conduct, and the evidence relating to the circumstances of the criminal act.

23. Intent: Words and Phrases. Malice is that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse.

24. Homicide: Evidence: Intent. Evidence that one, intentionally and with malice, shot into a residence, lighted or unlighted, and that a death resulted is, in and of itself, sufficient to establish murder in the second degree.

Dennis R. Keefe, Lancaster County Public Defender, and Sean J. Brennan, Lincoln, for appellant.

Don Stenberg, Atty. Gen., and Marilyn B. Hutchinson, Lincoln, for appellee.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ., and BOSLAUGH, J., Retired.

CAPORALE, Justice.

I. STATEMENT OF CASE

Following a bench trial, the defendant-appellant, JaRon Dean, was adjudged guilty of second degree murder and the use of a firearm to commit that felony. Inasmuch as he was sentenced to life imprisonment for the murder, his appeal was docketed in this court. See Neb.Rev.Stat. § 24-1106 (Cum.Supp.1994). He asserts the trial court erred in (1) refusing to apply the doctrine of collateral estoppel, (2) overruling his motion to suppress his statements to the police, (3) receiving certain evidence, (4) failing to affirmatively find the existence of malice, and (5) finding the evidence otherwise sufficient to establish second degree murder. We affirm.

II. BACKGROUND

On October 22, 1992, Phillip Secret and Deron Haynes were involved in a dispute concerning an automobile accident with Haynes and the sister of Secret's girl friend. When Haynes took a gun from the trunk of his automobile, Secret retreated to his vehicle and left the scene.

Later that evening, Secret met with Dean, Leonard Anderson, Anthony Cates, and Gregory Pool at Anderson's house, where Secret brought out a blue bag containing a 12 gauge shotgun, a .22-caliber revolver, and an AK-47 rifle. Anderson had also brought a gun, a .380-caliber semiautomatic pistol. The group then drove to a trailer where they understood Haynes was living with his brother and another person. Two automobiles were parked near the trailer when the group initially drove by it, at which time lights were on inside the middle part of the trailer. When the group drove by the trailer a second time, only one automobile remained parked near the trailer, and the lights were still on inside the middle section of the trailer. The group parked their automobile in back of the trailer and distributed the weapons. Cates armed himself with the shotgun Pool selected the .22-caliber revolver, and Dean took the AK-47 rifle. Anderson kept his own .380-caliber semiautomatic pistol.

While the group approached the trailer, Keith Williams and others arrived. Pool and Dean then walked to the front of the trailer. Cates, Anderson, and Williams remained at the back of the trailer. The four armed men repeatedly shot their weapons into the lighted section of the trailer and then fled the scene.

Police later found Haynes' corpse inside the trailer. The pathologist who conducted the autopsy testified that the death resulted from a single gunshot wound to the chest and that the fatal bullet entered the victim's body on the right side toward the back of his armpit and left a small spherical wound. The exit wound was located on the left side of the victim's back and was slightly larger than the entrance wound, a fact which suggested a high-velocity missile. In the pathologist's opinion, the victim was killed by a small-caliber, high-velocity weapon. Of the weapons used by the gunmen, only the AK-47 rifle could fire such a high-velocity missile.

The firearms and tool mark examiner for the Nebraska State Patrol crime laboratory inserted a dowel into a bullet hole that penetrated both the exterior and interior walls on the west side of the trailer, thus establishing the angle at which the bullet making the hole entered. He then used a laser beam to reconstruct the path the bullet...