State v. Derry
| Citation | 248 Neb. 260,534 N.W.2d 302 |
| Decision Date | 23 June 1995 |
| Docket Number | No. S-94-1178,S-94-1178 |
| Parties | STATE of Nebraska, Appellee, v. Floyd L. DERRY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Jury Instructions: Proof: Appeal and Error. In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
2. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence.
3. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.
4. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
5. Jury Instructions: Appeal and Error. Before an error in the giving of instructions can be considered as a ground for reversal of a conviction, it must be considered prejudicial to the rights of the defendant.
6. Jury Instructions: Lesser-Included Offenses: Presumptions: Appeal and Error. When the trial court in a criminal case provides the jury with a "step" instruction and instructs the jury that, if they convict the defendant of a primary crime, they should not consider the lesser-included offenses charged, an appellate court presumes the jury followed the trial court's instruction and did not consider any of the purported lesser-included offenses after the defendant was found guilty of a primary crime.
7. Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. Moreover, on such a claim, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence.
8. Sentences. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.
9. Sentences. In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime.
David T. Schroeder, of Kelly & Schroeder, Grand Island, and R. Bradley Dawson, of Clough, Dawson & Piccolo, North Platte, for appellant.
Don Stenberg, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.
Floyd Derry was convicted of murder in the second degree by a jury in the district court for Deuel County for the November 4, 1993, killing of his wife, Veronica Derry (the victim). Derry appeals his conviction, alleging that certain jury instructions given by the trial court were erroneous, that there was insufficient evidence to support the conviction, and that his sentence was excessive. For the reasons stated herein, we affirm.
Derry and the victim were married March 30, 1959. The record reflects that the marriage was troubled from the beginning. Derry testified that in 1981, he was diagnosed with multiple sclerosis. In 1984, Derry began walking with the aid of crutches. Sometime during the mid-1980's, Derry and the victim started arguing a lot, and the couple's marriage began to deteriorate. In January 1991, the fighting got so bad that Derry began sleeping in a separate bedroom.
On September 21, 1993, the victim told Derry that she wanted a divorce. Two days later, on September 23, Derry received a "Protection Order" issued by the district court for Deuel County, ordering him not to disturb the victim. Derry contacted an attorney and, pursuant to the attorney's instructions, removed his clothing and personal belongings from the family home. Thereafter, Derry showered at a farmstead that he owned 10 miles east of Chappell, Nebraska, near Interstate 80, and slept at his father's home in Chappell.
After he moved out of the family home, Derry regularly spoke with the victim on the telephone to read her mail to her and to determine if the victim wanted any of the mail brought to her. Sometime during the first few days of November 1993, the victim called Derry and told him that she had been dating another man for approximately 5 years and that she was leaving to be with the other man on Thursday, November 4. Derry testified that during the time preceding that phone call, he had wanted to remain married to the victim.
Derry finished work at approximately 6 p.m. on Thursday, November 4; showered and changed his clothes at his farmstead; and then went into Chappell to eat dinner with his father and to sort the mail. At approximately 8 p.m., Derry left Chappell and drove out to the family home where the victim still resided. Derry testified that he went to see the victim because he wanted to talk her into staying with him. Derry waited near the house in his pickup until the victim returned and then drove his pickup to just east of the house and parked. Derry got out of the pickup and shut the door. The victim approached him and knocked him down by hitting him in the chest with a large purse.
Derry testified that he got back to his feet and began trying to talk to the victim about getting back together. The victim continued to hit Derry with the purse, eventually knocking him off his feet a second time. Derry testified that as he began crawling back to the pickup the victim stopped hitting him, so he got up and walked to the pickup. Upon reaching the pickup, Derry opened a toolbox and grabbed a crescent wrench. He told the victim, "Now damn it, you hit me again and I am going to hit you back." Derry testified that the victim swung the purse at him again and that he hit her in the ear with the wrench. Derry claimed that he meant to tap the victim on the shoulder with the wrench, but that when he accidentally hit her ear she started bleeding. The wrench flew out of Derry's hand and landed behind the victim.
After being struck with the wrench, the victim dropped her purse and headed for the garage beside the house. Derry picked up the wrench and began to follow her. The victim stopped at the garage and started talking very fast, accusing Derry of following her and spying on her. Derry testified that he denied spying on the victim and that he told her to shut up so they could talk. The victim began to walk toward the back of the house, and Derry followed. Derry testified that he attempted to tap the victim on the shoulder with the wrench, but the wrench flew out of his hand and landed on the ground in front of the victim. The victim dove to the ground and grabbed the wrench. The victim then wrapped her legs around Derry's legs and brought him to the ground beside her. Derry estimated that they were struggling on the ground for approximately 30 minutes.
While they were lying on the ground, Derry testified that the victim kept trying to hit him with the wrench. Derry blocked the victim's attempts to strike him with the wrench by putting his hand on the top end of the wrench. Derry testified that the victim told Derry that he was going to run out of energy and become weak. Derry, fearing that the victim was right, took his left hand off the wrench and slugged the victim three or four times. Derry felt the victim relax her legs enough for him to twist free, so he pulled loose and grabbed the wrench. In a tape-recorded interview conducted with Sgt. Gary Renner of the Nebraska State Patrol soon after Derry's arrest, Derry gave the following account of events after he gained control of the wrench:
FD [Derry]: ... I grabbed that crescent and I twisted and I got it away from her. And she's trying to get it back on, so I hit her, and hit her, and hit her.
GR [Sergeant Renner]: Hmm. Have any idea how many times you hit her?
Later in the interview, Sergeant Renner asked Derry why he chased the victim into the backyard. Derry responded:
....
FD: And then, (unintelligible) I was running, an-and I hit her and then she tangled up her legs around mine. And we were on the ground there for, twenty thirty minutes. She just, had her mouth going all the time and I knew there was no talk. I...
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...that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. State v. Derry, 248 Neb. 260, 534 N.W.2d 302 (1995). FACTS The facts underlying this case are fully set forth in Ryan's direct appeal. See State v. Ryan, 226 Neb. 59, 409 N.......
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