State v. Kinser
| Decision Date | 06 June 1997 |
| Docket Number | No. S-95-922,S-95-922 |
| Citation | 252 Neb. 600,567 N.W.2d 287 |
| Parties | STATE of Nebraska, Appellee, v. William D. KINSER, Jr., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.
2. 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 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.
3. Self-Defense. To successfully assert the claim of self-defense, one must have a both reasonable and good faith belief in the necessity of using force. In addition, the force used in defense must be immediately necessary and must be justified under the circumstances.
4. Jury Instructions: Evidence. A trial court is not required to give an instruction where there is insufficient evidence to prove the facts claimed; however, it is not the province of the trial court to decide factual issues even when it considers the evidence produced in support of one party's claim to be weak or doubtful. It is only when the evidence is so doubtful in character and lacking in probative value so as to constitute a failure of proof that a trial court may properly 5. Witnesses: Testimony: Juries. The credibility of a witness and the weight to be given to that witness' testimony are issues for the jury to resolve.
refuse to instruct a jury on a defendant's theory of defense.
6. Self-Defense: Jury Instructions. A trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense.
7. Self-Defense. Justifications for the use of force are statutorily defined affirmative defenses.
8. Trial: Evidence: Proof. The nature of an affirmative defense is such that the defendant has the initial burden of going forward with evidence of the defense. When the defendant has produced sufficient evidence to raise the defense, the issue is then one which the State must disprove.
9. Self-Defense: Trial: Evidence: Proof. The evidence necessary to raise an affirmative defense may be adduced either by the defendant's witnesses or in the State's case in chief without the necessity of the defendant's presenting evidence. Such defendant need only adduce a slight amount of evidence to satisfy the initial burden of raising the issue of self-defense.
10. Self-Defense: Pleadings: Notice. A defendant is not required to plead and give notice of an affirmative defense of justification or self-defense.
11. Trial: Judges: Jury Instructions: Appeal and Error. It is the duty of the trial judge to instruct the jury on the pertinent law of the case, whether requested to do so or not, and an instruction or instructions which by the omission of certain elements have the effect of withdrawing from the jury an essential issue or element in the case are prejudicially erroneous.
Robin W. Hadfield, of Nebraska Commission on Public Advocacy, and, on briefs, Jon Placke, Assistant Box Butte County Public Defender, for Appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for Appellee.
Appellant, William D. Kinser, Jr., was convicted by a jury of first degree assault, second degree assault, and use of a weapon in the commission of a felony. In an unpublished memorandum opinion, the Nebraska Court of Appeals reversed the judgment and remanded the cause for a new trial because of the trial court's refusal to instruct the jury as to self-defense. See State v. Kinser, 4 Neb.App. xxi (case No. A-95-922, June 5, 1996). It is from this decision that the State has successfully sought further review in this court. For the reasons that follow, we affirm the judgment of the Court of Appeals.
The events involved in this case occurred on January 20, 1995, at the Bowl Mor Lounge in Alliance, Nebraska. The circumstances surrounding the alleged assault are in dispute. The testimony of two witnesses, the victim, James Covalt, and Penny Overshiner, a woman who accompanied Kinser to the Bowl Mor Lounge that evening and who was the only eyewitness other than the victim, is of particular importance with respect to the issues on appeal.
Covalt testified that around 8:30 p.m. on January 20, he was sitting at the bar in the Bowl Mor Lounge having a couple of beers. After Covalt had been in the bar for about 20 minutes, Kinser approached Covalt to talk to him. Covalt testified that they talked briefly, and then Kinser left the bar but returned a short time later. Covalt said that when Kinser returned, he did not see him enter the lounge with anybody else. When asked what he and Kinser talked about, Covalt said that he could not remember. However, Covalt could remember that on that evening, Kinser was loud and obnoxious, appeared to be intoxicated, and in general was pestering him. Covalt testified that he repeatedly told Kinser to leave him alone and go back to his table.
Covalt said that when Kinser turned as if to leave, Covalt turned away from Kinser and faced the bar. According to Covalt, the next thing he heard was the sound of breaking glass when he was suddenly struck by Kinser and knocked off his barstool onto the floor. Covalt received severe cuts across his nose and lip, as well as several smaller cuts on his forehead. Covalt thought Kinser had struck him with a beer bottle. In fact, Kinser had struck him with a drinking glass.
Kinser did not testify at trial. However, Overshiner testified on his behalf. Overshiner testified that she observed the entire event. Overshiner said she was standing at the bar watching Kinser talk to Covalt but could not hear their conversation. She testified that it appeared as though the two men were arguing. Overshiner said that after about 5 minutes, Covalt made "an aggressive provocative move" upward toward Kinser's throat with the beer bottle he was holding in his hand. In response, Kinser punched Covalt with his right hand, in which he was holding a drinking glass. Overshiner testified that Kinser did not try to push the glass into Covalt's face, but instead was just holding the glass when he hit Covalt. She said it appeared that Kinser simply reacted and attempted to block Covalt's movement when Covalt brought his arm up with the beer bottle. At trial, Kinser tendered an instruction concerning self-defense, which the trial court refused. A jury convicted Kinser of first degree assault, second degree assault, and use of a weapon in the commission of a felony, and Kinser timely appealed his convictions to the Court of Appeals.
The Court of Appeals reversed Kinser's convictions, concluding that Kinser was due a jury instruction concerning self-defense if there was any evidence to support such a theory of defense. The Court of Appeals determined that if a jury were to believe Overshiner's testimony regarding the incident, then it could conclude that Kinser acted in self-defense in attempting to block Covalt's aggressive and provocative move with a beer bottle. Moreover, the Court of Appeals concluded that the failure of the trial court to give such an instruction left the jury without any authority to consider the issue of self-defense and, therefore, with no choice but to find Kinser guilty of the assault charges.
The State contends that the Court of Appeals erred when it (1) concluded that Kinser was due a jury instruction on self-defense if there was any evidence adduced to support such a defense, without regard to whether the evidence adduced was sufficient as a matter of law to prove self-defense, and (2) reversed the judgment and remanded this matter for a new trial, because the trial court correctly determined that a self-defense instruction was not warranted by the evidence at trial.
Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997); State v. Trevino, 251 Neb. 344, 556 N.W.2d 638 (1996).
Kinser asserts that the trial court erred in refusing to instruct the jury on his theory of defense, i.e., self-defense. Kinser timely objected to the jury instructions and tendered and requested an instruction on self-defense. The trial court not only rejected Kinser's instruction, but flatly refused to instruct the jury regarding the issue of self-defense.
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. Kent v. Crocker, 252 Neb. 462, 562 N.W.2d 833 (1997); State v. Glantz, 251 Neb. 947, 560 N.W.2d 783 (1997).
The jury instruction offered by Kinser substantially complied with Neb.Rev.Stat. § 28-1409(1) (Reissue 1995) and was a correct statement of the law. See State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990). Thus at issue in this appeal is whether the tendered instruction was warranted by the evidence and whether Kinser was prejudiced by the trial court's refusal to so instruct.
In this regard, the State argues that a defendant does not merit a jury instruction concerning self-defense when there is merely any evidence to support such a theory, but, instead, the trial court is required to instruct a jury as to the defendant's theory of defense only if there is evidence sufficient...
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