State v. Jones
| Decision Date | 06 May 1994 |
| Docket Number | No. S-92-1054,S-92-1054 |
| Citation | 245 Neb. 821,515 N.W.2d 654 |
| Parties | STATE of Nebraska, Appellee, v. Roy L. JONES, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Homicide: Intent: Case Overruled. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), holding that manslaughter is an intentional killing of another under Nebraska law, is overruled.
2. Jury Instructions: Lesser-Included Offenses. "Step" instructions, requiring consideration of the most serious crime charged before consideration of lesser-included offenses, held not erroneous.
3. Homicide: Intent: Jury Instructions: Appeal and Error. Malice is a necessary element of murder in the second degree, and an instruction that fails to include it as an essential element of murder in the second degree is plain error and prejudicial.
4. 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.
Thomas M. Kenney, Douglas County Public Defender, and Thomas C. Riley, Omaha, for appellant.
Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.
The defendant, Roy L. Jones, was charged with first degree murder and use of a firearm in the commission of a felony in the shooting death of his wife, Tara Jones. He was convicted by a jury of second degree murder and use of a firearm and was sentenced by the district court to consecutive terms of imprisonment for not less than 50 years on the murder conviction and 5 to 10 years for the use of a firearm conviction.
On March 22, 1992, the defendant left Omaha, Nebraska, to take a job selling cars in Salt Lake City, Utah. His wife, Tara, and her 6-year-old son, Brian, planned to move to Utah with the defendant after the end of the school year.
During that first week in Utah, the defendant called his wife at home several times a day. On Thursday, March 26, Tara told the defendant she would be attending a cat show in Sioux City, Iowa, on Saturday and Sunday. She planned to drive there with two of her friends, Tonya Wendt and Barbara Curry.
On Friday, March 27, the defendant was unable to reach his wife at home when he tried to call. On Friday evening, he called Wendt, who told him that due to illness of her children, she was unable to attend the cat show, and that Tara had driven up with some other people on Friday. Wendt testified at trial that the defendant threatened to kill her and Tara if she was lying.
Later that evening, the defendant called Curry, who also told him she had decided not to go to Sioux City. She told the defendant that Tara had gone to the cat show with some other people. Curry also testified that the defendant threatened to kill her and Tara if she was covering for Tara.
The defendant became concerned about the whereabouts of his wife and called the paternal grandmother of Tara's son. He discovered that Brian had been dropped off at his grandmother's by Tara on Thursday night.
The defendant then determined where the cat show was being held in Sioux City and attempted to locate Tara there. He discovered that Tara was not registered at the cat show. He then called the cat show hall, asked that Tara be paged, and found that no one responded to the page.
The defendant called his mother-in-law, Sandy Schaeffer, who told him that Tara had gone to the Sioux City cat show.
The defendant decided to come back to Omaha to try to find his wife. He purchased an airline ticket and returned to Omaha on Saturday, March 28. The defendant was met at the airport by his father, and they drove to Tara's apartment to see if the cats were there. Upon entering the apartment, he observed that two of their four cats were gone.
The defendant later discovered that there was a cat show taking place in the Chicago area and that Tara had gone to that show. The defendant called the Champaign-Urbana police, telling them he needed to contact his wife for a family emergency. The police station was across the street from the building housing the cat show, and the police agreed to contact her. The police contacted Tara, and she phoned the defendant.
While waiting for Tara to call him, the defendant looked through her dresser drawer and noticed that her lingerie and miniskirts were missing. A neighbor testified that she heard the defendant yelling, " 'I'm going to blow her head off.' "
When Tara called, she was unable to explain where she was staying, and they got into an argument. Tara told the defendant she would be returning to Omaha by airplane on Sunday evening. During the rest of Saturday evening, the defendant made several phone calls to his mother-in-law and also spoke again with his wife.
On Sunday, the defendant and his father went to the airport and picked up his and Tara's car. After picking up the car, the defendant returned alone to the apartment and left a note and his wedding ring for Tara. He expressed his regret that she felt the marriage was over and stated that he would always love her.
Late Sunday night, March 29, the defendant received a phone call at his parents' house from Tara. She was at her mother's house and asked if the defendant would come over.
The defendant went to see Tara and argued with her in the presence of her mother and stepfather. During the argument, Tara told the defendant that she had been with another man in Illinois and had slept with him.
The defendant then returned to his parents' home. Sometime thereafter, Tara called and asked him to return to her parents' residence. The defendant went back, and he and Tara had sex. He returned to his parents' home around 9 o'clock on Monday morning.
The defendant thought after spending the night with Tara that things were going to be better between them. He returned later that morning to pick up Tara to take her home. Upon his return, Tara indicated that she was still confused and needed more time. The defendant reacted with anger and disgust.
Later that Monday afternoon, the defendant returned to his apartment for the purpose of retrieving some clothes and his father's video cassette recorder. When he arrived at the apartment, his wife, stepson, and Tara's brother Scott were there.
After a short period of time, the defendant asked Scott to leave so he could be alone with Tara to talk things out. After Scott left, the defendant and Tara began to talk and soon began to argue about her infidelity and their relationship.
The argument escalated, and Tara locked herself in the master bedroom of the apartment. The defendant kicked in the door. He testified that Tara was pointing a gun at him, that they struggled over the gun, and that he snapped. He did not recall the shooting itself.
Tricia Ferguson, a resident of the apartment complex, testified that on March 30, as she was driving into the apartment parking lot, she saw what appeared to be Tara trying to get back into her apartment through the window. Next she saw Tara's shirt "fly off" and Tara running away from the window. Ferguson then observed a hand with a gun in it extend from the window area and heard approximately four shots. As the shots were fired, Tara staggered and eventually fell. Within seconds, the defendant came out of the apartment and shot Tara two more times in the head. Then he went back into the apartment.
The shooting occurred in the daylight hours in front of numerous witnesses, including several construction workers who were all yelling at the defendant to leave Tara alone. Their testimony concerning the killing was the same as Ferguson's.
Dr. Jerry Jones, the pathologist who performed the autopsy on Tara, testified that the two shots to her head were the fatal shots.
From Friday, March 27, through the time the defendant shot and killed his wife, the defendant had been drinking constantly.
On appeal to this court, the defendant contends that the trial court erred by overruling the defendant's objection to jury instruction No. 6, which required the jury to find the defendant not guilty of murder in the second degree before they could consider the lesser-included offense of voluntary manslaughter; that the trial court erred by overruling the defendant's objection to that portion of instruction No. 11 which defines malice as the state of mind shown by intentionally doing a wrongful act; and that the trial court erred by giving Nebraska's pattern jury instruction NJI 14.08 on reasonable doubt because that instruction violates due process in that it equates reasonable doubt with substantial doubt, grave uncertainty, and moral certainty contrary to the U.S. Supreme Court's ruling in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990).
Instruction No. 6 has been referred to as a "step" instruction or "acquittal first" instruction. As given in the defendant's trial, it is set forth as follows:
Under Count I of the Information in this case, depending on the evidence, you may find the defendant:
A. Guilty of murder in the first degree; or
B. Guilty of murder in the second degree; or
C. Guilty of voluntary manslaughter; or
D. Not guilty.
The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict the defendant of the crime of murder in the first degree in Count I are:
1. That the defendant, Roy L. Jones, killed Tara L. Jones;
2. That the defendant did so purposely and with deliberate and premeditated malice 3. That the defendant did so on or about March 30, 1992; and
4. That the defendant did so in Douglas County, Nebraska.
The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material elements of the crime of murder in the first degree necessary for conviction.
If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements is...
To continue reading
Request your trial
-
State v. Dean
...not accidentally or involuntarily." (a) Scope of Review Whether malice existed is unquestionably a factual issue. See State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994) (jury instruction failing to include malice as element of second degree murder prejudicially erroneous). However, whether......
-
State v. LeBlanc
...Van Dyken, 242 Mont. 415, 791 P.2d 1350, 1361, cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990); State v. Jones, 245 Neb. 821, 515 N.W.2d 654, 656-59 (1994); State v. Taylor, 677 A.2d 1093, 1097 (N.H.1996); People v. Boettcher, 69 N.Y.2d 174, 513 N.Y.S.2d 83, 86-87, 505 N.E......
-
State v. Ryan
...is plain error and prejudicial. See, State v. Williams, supra; State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994). When the material element of malice is omitted from the second degree murder jury instruction, a defendant's conviction f......
-
State v. Nesbitt
...Neb. 141, 474 N.W.2d 660 (1991), abrogated on other grounds, State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995), and State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). See, also, Victor v. Nebraska, 511 U......
-
Malice in Nebraska
...knowledge other than stating that he reasonably could have expected someone to be there. 171. FLETCHER, supra note 138, at 256. 172. 245 Neb. 821, 515 N.W.2d 654 (1994). 173. 233 Neb. 436, 445 N.W.2d 890 (1989). 174. 231 Neb. 481, 477 N.W.2d 125 (1989). The history of Batiste and Pettit may......