State v. Kistenmacher
| Decision Date | 24 February 1989 |
| Docket Number | No. 87-1050,87-1050 |
| Citation | 436 N.W.2d 168,231 Neb. 318 |
| Parties | STATE of Nebraska, Appellee, v. Brent D. KISTENMACHER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Assault: Words and Phrases. "Recklessly," as used in Neb.Rev.Stat. § 28-109 (Reissue 1985), means conduct in which an actor disregards a substantial and unjustifiable risk to another, which risk, in view of the nature and purpose of the actor's conduct and circumstances known to him, involves a gross deviation from the standard of conduct which a law-abiding person would have observed in the actor's situation.
2. Jury Instructions: Appeal and Error. All jury instructions must be read together, and if the instructions taken as a whole correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error.
3. Jury Instructions: Assault: Weapons. It is a correct statement of the law, and therefore proper to instruct, that the intentional pointing of a loaded firearm at another person, unless legally justified, is ordinarily an unlawful assault.
4. Sentences: Appeal and Error. Sentences imposed within the limits prescribed by statute will not be disturbed on appeal, absent an abuse of discretion.
Thomas M. Kenney, Douglas County Public Defender, and Thomas C. Riley, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.
A jury found the defendant, Brent D. Kistenmacher, guilty of manslaughter in violation of Neb.Rev.Stat. § 28-305(1) (Reissue 1985), and of using a firearm to commit a felony, a violation of Neb.Rev.Stat. § 28-1205(1) (Reissue 1985), in the shooting death of Jason Cuellar. The defendant was subsequently sentenced to not less than 6 2/3 nor more than 20 years' imprisonment on count I, manslaughter, and not less than 3 nor more than 5 years' imprisonment on count II, the firearm charge, the sentence on count II to run consecutively to the sentence on count I. Defendant appeals, asserting that the trial court erred in (1) granting the State's motion in limine precluding the defendant from offering psychiatric testimony relevant to a material issue in the case; (2) instructing the jury over the defendant's objection that the intentional pointing of a loaded firearm at another person, unless legally justified, is ordinarily an unlawful assault; and (3) imposing an excessive sentence.
On April 12, 1987, at approximately 4:30 p.m., the defendant had returned to his apartment after playing in a softball game. A short time later the deceased, Cuellar, and Bill Morast arrived at the defendant's apartment. Cuellar and Morast remained for about an hour. Also present was Mark Deitering, the defendant's roommate. Thereafter, all four left the apartment, as Kistenmacher and Deitering had made plans to visit some friends.
The defendant and Deitering returned to their apartment at about 9:15 that evening. No one else was in the apartment at that time. The two went into the defendant's room and visited until approximately 9:50 p.m., when they began to hear noises coming from another room of the apartment.
The defendant and Deitering did not know anyone else was in the apartment at that time. Unknown to them, Cuellar and Morast had returned. Cuellar and Morast could hear the defendant and Deitering in the apartment, and let themselves in through the unlocked front door. Cuellar and Morast then sat down on the couch, and Cuellar began to throw Hot Tamale candies at the bedroom door of the defendant.
The defendant owned a .22-caliber double-action revolver which had been given to him by his father several months earlier. He kept this revolver in his nightstand drawer. The defendant testified that he kept the weapon loaded, except that the chamber directly underneath the hammer and the next forward chamber were kept empty.
After hearing the noises caused by Cuellar's throwing the candies at the defendant's door, the defendant and Deitering exited the bedroom and walked down the hall toward the living room. At that point, the defendant thought the noise had been caused by an intruder. As they were approaching the living room, either the defendant or Deitering stated, "Who is it, we've got a gun," and Cuellar and Morast chuckled a bit.
When the defendant and Deitering reached the end of the hall, they recognized the "intruder" as Morast and Cuellar. At that point, believing that the chamber under the hammer was empty, the defendant raised the gun, pointed it at the deceased, and pulled the trigger. A shot was fired, striking Cuellar in the head. At that time, "everybody started just freaking out," and the defendant told Deitering to call 911 for an ambulance.
During questioning at the police station, the defendant admitted that he had shot Cuellar and that at the time of the shooting he knew it was Cuellar and not an intruder. When asked why he would point a gun at a friend of his, the defendant stated that his group of friends would play "head games" with each other to "freak everybody out" and would do things such as point guns at people.
Prior to the trial, the defense notified the State that it intended to call Dr. Thomas Radecki, a psychiatrist, as a witness on behalf of the defendant. The testimony of Dr. Radecki was intended to bear on the state of mind of the defendant at the time of the shooting. The testimony was being offered by the defense to negate the prosecution's claim of reckless conduct on behalf of the defendant. The substance of Dr. Radecki's testimony is contained in an offer of proof made by defense counsel at trial. He testified that his examination of the defendant revealed that Brent Kistenmacher was a 20-year-old who had become "desensitized to the serious nature of the games he was playing." This desensitization was brought about by, among other factors, his choice of violent television programs, heavy metal music, and horror-type movies. Dr. Radecki also stated that this "desensitization" theory was widely accepted in his profession. Because of desensitization, the defendant could not and did not appreciate the great risk of danger posed by his behavior. Evidence of mental defects (desensitization) was excluded in Zuber v. State, 500 So.2d 670 (Fla.App.1986), the court noting, however, that the expert was not asked whether the defects described were such as would adversely affect and diminish defendant's mental capacity to form specific intent. That omission is not present in this case. Defense counsel argued that this testimony was relevant, as the definition of "recklessly" contained in Neb.Rev.Stat. § 28-109(19) (Reissue 1985) contains a subjective intent requirement, and Dr. Radecki's testimony would have some bearing on the determination of whether the defendant had the requisite subjective intent. The district court sustained the State's motion in limine to exclude the proposed testimony.
The defendant's first assignment of error concerns the exclusion of this expert testimony. Defense counsel asserts that the exclusion of the testimony of Dr. Radecki denied the defendant his constitutional right to present relevant, material evidence in his defense, as guaranteed by the U.S. Supreme Court in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and recognized by this court in State v. Ammons, 208 Neb. 797, 305 N.W.2d 808 (1981). Before we can determine whether this right was abridged, it must first be established that this evidence is relevant to the defendant's defense.
The focus of the prosecution was that the defendant was guilty of manslaughter in violation of § 28-305(1) because the defendant had killed another, without malice, while in the commission of an unlawful act. The underlying unlawful act was assault in the third degree.
Third degree assault is defined in Neb.Rev.Stat. § 28-310 (Reissue 1985). That statute provides in part: "(1) A person commits the offense of assault in the third degree if he: (a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or (b) Threatens another in a menacing manner." Specifically, it was the State's position that the defendant acted recklessly. The term "recklessly" is statutorily defined in § 28-109(19). This subsection provides the following:
(19) Recklessly shall mean acting with respect to a material element of an offense when any person disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
The State argues that in accordance with State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987), the definition of "recklessly" contained in § 28-109(19) is an objective one, thereby making any testimony as to the defendant's subjective intent irrelevant. In State v. Hoffman, supra, the defendant became intoxicated, drove his car, and was involved in an accident which took the life of another driver. In Hoffman, the defendant was arguing that he did not have the mental capacity necessary to form the general intent required for second degree assault. Hoffman contended that his intoxication "induced" him to climb behind the wheel, and that he therefore did not "intentionally" cause the death of the victim. When defining "recklessly" in Hoffman, this court stated at 139, 416 N.W.2d at 237:
However, under § 28-309(1)(b) concerning a second degree assault based on a reckless act or conduct, an intent to inflict or cause bodily injury is not an element; rather, the reckless act or conduct, causing serious bodily injury, is the gravamen. A reckless act involves a conscious choice in a course of...
To continue reading
Request your trial
-
State v. Hankins
...and adequately cover the issues, there is no prejudicial error. State v. Cole, 231 Neb. 420, 436 N.W.2d 209 (1989); State v. Kistenmacher, 231 Neb. 318, 436 N.W.2d 168 (1989); State v. Donhauser, 231 Neb. 114, 435 N.W.2d 186 (1989). Furthermore, the wording of jury instructions is within th......
-
State v. Matthews
...458 N.W.2d 239 (1990). Furthermore, pointing a gun at a person can constitute criminal assault. See, generally, State v. Kistenmacher, 231 Neb. 318, 436 N.W.2d 168 (1989); State v. Machmuller, 196 Neb. 734, 246 N.W.2d 69 (1976); State v. Brauner, 192 Neb. 602, 223 N.W.2d 152 (1974). Therefo......
-
State v. Davenport
...another's death while committing the offense of reckless assault. After the Supreme Court discussed its decision in State v. Kistenmacher, 231 Neb. 318, 436 N.W.2d 168 (1989), regarding the term "recklessly" and the irrelevancy of subjective intent, the court held that reckless assault was ......
-
State v. Pruett
...a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. In State v. Kistenmacher, 231 Neb. 318, 436 N.W.2d 168 (1989), we discussed the extent to which a reckless act involves a conscious choice in a course of action but held that the......