State v. Duis

• Decision Date: 30 January 1981
• Docket Number: No. 43400,43400
• Citation: State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (Neb. 1981)
• Parties: STATE of Nebraska, Appellee, v. Craig A. DUIS, Appellant.
• Court: Nebraska Supreme Court

Page 587

301 N.W.2d 587

207 Neb. 851

STATE of Nebraska, Appellee, v. Craig A. DUIS, Appellant.

No. 43400.

Supreme Court of Nebraska.

Jan. 30, 1981.

Syllabus by the Court

1. Assault. Assault with a dangerous instrument, like simple assault, is a general intent crime.

2. Jury Instructions. It is the duty of the trial court to instruct the jury on the law of the case whether requested to do so or not.

3. Jury Instructions. The trial court, on request of the accused, must instruct the jury on the accused's theory of the case if there is any evidence to support it.

4. Jury Instructions: Appeal and Error. The failure to object to instructions after they have been submitted to counsel for review will preclude raising an objection on appeal.

5. Jury Instructions. Where an instruction is technically correct, and is couched in terms which in the opinion of a party are liable to be misunderstood or misapplied by the jury, it is the party's duty to call the court's attention to the supposed defect and present a suitable instruction.

6. Record: Appeal and Error. Where allegedly prejudicial remarks of counsel do not appear in the bill of exceptions, this court is precluded from considering an assigned error concerning such remarks.

7. Miranda Rights. A prosecutor's reference to the defendant's failure to make an exculpatory statement to the police before arrest or accusation does not violate the accused's right to remain silent under the Miranda doctrine.

Paul E. Watts, Gerald E. Moran, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and John Boehm, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

HASTINGS, Justice.

Defendant, Craig A. Duis, was convicted by a jury of assault in the second degree, a violation of Neb.Rev.Stat. § 28-309 (Reissue 1979), which is a Class IV felony. Specifically, he was charged under subsection (1)(a): "Intentionally or knowingly causes bodily injury to another person with a dangerous instrument." He was sentenced to a term of imprisonment of 1 year in the Nebraska Penal and Correctional Complex. His motion for a new trial was overruled and he has appealed to this court, assigning as errors that the District Court: (1) Failed to sustain his motion to dismiss because of insufficiency of the evidence; (2) Failed to grant a motion for a mistrial because of an inaccurate instruction on self-defense; and (3) Failed to grant a motion for a mistrial because of misconduct of the prosecuting attorney. We affirm.

Although varying in some minor details, the facts are not in great dispute. The incident occurred during the early morning hours of November 17, 1979, in the parking lot of Arby's, a restaurant located on Ames Street, between 40th and 42nd Streets, in Omaha, Nebraska. The defendant, driving his car and accompanied by Randy Dean Jorgensen, parked at Arby's, placed an order for food, picked up the order, and went back out to the car. In the meantime, the victim, Allan Ray Veasley, accompanied David Moss in the latter's car to this same restaurant. They also went inside and ordered some food.

Although there is some disagreement as to who started the name calling, Moss contended that as he left the restaurant to return to his car, one or both of the occupants of defendant's car began calling him obscene names and started toward him as if to cause trouble. Moss claimed that he walked on to his car and made motions as if to take something out of the back seat and lay it up on top of the hood of the car as if it were a gun.

According to the defendant, it was Moss who started the name calling. When Moss proceeded over to his car, the defendant concluded that there was something about Moss' actions that made him suspicious, so he directed his companion, Jorgensen, to get into the car. The defendant then backed up his car and started forward to go out onto Ames Street. As the defendant was making this maneuver, he saw where Moss was standing and thought that he had a weapon in his hand. The defendant and his companion testified that defendant was in a hurry to leave the parking lot, that his car lights were not on, and that as they were either halfway onto or all the way onto Ames Street, both of them heard what they thought was a gunshot. While still driving forward, the defendant reached under his seat, picked up a .32-caliber handgun, and with his right hand fired three shots behind him in the direction of Moss' car. The defendant continued driving westbound on Ames Street to the top of a hill, where he saw a police cruiser and stopped.

As this episode was unfolding, the victim, Veasley, having picked up his food order, started outside and toward the Moss car. As he got to the car, he heard a series of shots, realized that he was struck, and climbed into the car for protection. Veasley was taken to Immanuel Hospital, where he was examined by Dr. Bechtel. The doctor found no bullet fragments, but did observe a bullet wound that went completely through the thigh.

Defendant's complaint as to the insufficiency of the evidence involves the failure of the State to prove the specific intent of the defendant to assault the particular victim. However, the defendant was not charged with assault with intent to do great bodily harm, as argued by him as several places in his brief. Such a charge, according to some authorities, would necessitate proof of the defendant's intent to do some further act or achieve some additional consequence. Therefore, it is reasoned, specific rather than general intent must be shown in such case. People v. Hood, 1 Cal.3d 444, 462 P.2d 370, 377, 82 Cal.Rptr. 618 (1969). Rather, defendant was charged with intentionally and knowingly causing bodily injury to another person with a dangerous instrument. Assault with a dangerous instrument, like simple assault, is a "general intent" crime. People v. Rocha, 3 Cal.3d 893, 479 P.2d 372, 92 Cal.Rptr. 172 (1971); People v. Richard Johnson, 42 Mich.App. 544, 202 N.W.2d 340 (1972). It was only necessary to prove that defendant did the act of injuring another person with a dangerous instrument in an intentional manner. Sall v. State, 157 Neb. 688, 61 N.W.2d 256 (1953). This issue was correctly submitted to the jury by instruction No. 9, NJI 14.11, and was decided adversely to the defendant.

Defendant contends that the instruction on self-defense, instruction No. 10, which followed NJI 14.33, was incorrect under the circumstances of this case. Neb.Rev.Stat § 28-1409 (Reissue 1979) provides that deadly force is not justifiable if "the actor knows that he can avoid the necessity of using such force with complete safety by retreating." Under the circumstances, we are not completely convinced that any instruction on self-defense was warranted. However, we are not prepared to say as a matter of law that the defendant was not entitled to have his theory of defense passed upon by the jury.

We have said that it is the duty of the trial court to instruct the jury on the law of the case whether requested to do so or not. State v. Ross, 183 Neb. 1, 157 N.W.2d 860 (1968). We have similarly stated the law to be that the trial court, on request of the accused, must instruct the jury on the accused's theory of the case if there is any evidence to support it. State v. May, 174 Neb. 717, 119 N.W.2d 307 (1963). At the instruction conference held immediately before charging the jury, the defendant's counsel stated that he had no instructions to request nor did he have any objections to those proposed by the court. " 'The failure to object to instructions after they have been submitted to counsel for review will preclude raising an objection on appeal.' " Haumont v. Alexander, 190 Neb. 637, 640, 211 N.W.2d 119, 122 (1973).

The jury was instructed, and retired to deliberate at 3:02 p. m., March 7, 1980. On the same day at 4:25 p. m. the court received a request for clarification from the jury as to the meaning of "another person" as referred to in instruction No. 7. This instruction set forth the statutory description of the alleged offense, i. e., "causing bodily injury to another person ...." The court then prepared and read to the jury supplemental instruction No. 1 which states in pertinent part as follows: "The wording 'another person' as used in the Nebraska Criminal Code refers to the person injured. Instruction No. 7 should be read in conjunction with all the other instructions, but specifically with Instruction No. 2." Instruction No. 2 set forth the nature of the charges taken from the information, based upon the statutory language of § 28-309. At the conference held with counsel for both defendant and the State, before reading the supplemental instruction, defendant's attorney said: "I know it is difficult, but I interpret it to mean a different person and I think that the instructions are not clear as to the reason this note came out and as to the self defense instruction only, goes to Moss rather than to Veasley and consequently there is a general misunderstanding, and I think the Court should clarify the self defense instruction to...