State v. Lyle, S-93-414
| Decision Date | 11 March 1994 |
| Docket Number | No. S-93-414,S-93-414 |
| Citation | 245 Neb. 354,513 N.W.2d 293 |
| Parties | STATE of Nebraska, Appellee, v. Arthur LYLE, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Judgments: Appeal and Error. The judgment of a trial court on the facts in a jury-waived criminal action has the same force as a jury verdict and will not be set aside on appeal if there is sufficient competent evidence to support the judgment.
2. Homicide: Intent. Whether a killing constitutes manslaughter or murder in the first degree depends upon the state of mind of the killer.
3. Homicide: Intent. In one type of first degree murder, the defendant must have killed purposely and with deliberate and premeditated malice.
4. Homicide: Intent: Words and Phrases. Malice is that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse.
5. Homicide: Intent: Words and Phrases. Deliberate malice and premeditated malice are separate and distinct elements of the crime of murder in the first degree.
6. Homicide: Intent: Words and Phrases. Deliberate means not suddenly, not rashly; but deliberation requires that the defendant considered the probable consequences of his or her act before doing the act.
7. Homicide: Intent: Words and Phrases. Premeditated means to have formed a design to commit an act before it is done.
8. Homicide: Intent: Words and Phrases. One kills with premeditated malice if, before the act causing the death occurs, one has formed the intent or determined to kill the victim without legal justification.
9. Homicide: Intent: Time. No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death.
10. Homicide: Intent: Time. The time required to establish premeditation may be of the shortest possible duration and may be so short that it is instantaneous, and the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed.
11. Homicide: Words and Phrases. A sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control.
12. Homicide: Words and Phrases. A sudden quarrel does not necessarily mean an exchange of angry words or an altercation contemporaneous with the unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim.
13. Homicide: Intent. It is not the assault or provocation alone that reduces the grade of a crime from murder to manslaughter but, rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent.
14. Homicide: Intent: Time. If one had enough time between the provocation and the killing to reflect on one's intended course of action, then the mere presence of passion does not reduce a crime below murder.
15. Homicide: Intent: Time. In determining whether a killing constitutes murder or manslaughter, the question is whether, under all the facts and circumstances, a reasonable time had elapsed from the time of the provocation to the instant of the killing for the passion to subside and for reason to resume control of the mind.
16. Homicide: Intent: Circumstantial Evidence: Proof. Deliberation and premeditation may be proven circumstantially.
Thomas M. Kenney, Douglas County Public Defender and Kelly S. Breen, Omaha, for appellant.
Don Stenberg, Atty. Gen. and Mark D. Starr, Lincoln, for appellee.
Following a bench trial, the court below convicted the defendant-appellant, Arthur Lyle, of, among other things, murder in the first degree, a violation of Neb.Rev.Stat. § 28-303 (Reissue 1989). Lyle assigns that conviction as error, claiming, in essence, that it is inconsistent with the trial judge's implicit finding, and the presence of evidence showing, that the killing was committed in the heat of passion. We affirm.
On August 2, 1992, Lyle went to a nursing home to visit his mother. With him were his two grandsons. When he arrived at the home, his younger brother, John Gould, and Gould's wife were already there, seated with the mother at a table on the patio.
After some small talk, Gould, the wife, and Lyle began talking about the mother's property because it appeared that she would remain at the home indefinitely. They first talked about the mother's house and what they should do with it. Gould proposed that Lyle take it; Lyle, however, was not interested and suggested that the family sell the house and pay off its liens with the proceeds. The wife disagreed and accused Lyle of not doing anything for his mother.
Lyle then contended that Gould and the wife had moved all of his things out of the mother's house and locked the garage without telling him. As the discussion turned to Lyle's possessions in the garage, he called the wife a "bitch." Gould stood up and told Lyle that he could not call Gould's wife those names, but Lyle again repeated the derogatory name.
The wife testified that a fight then broke out, but she did not see who threw the first punch. A nurse's aide first heard the men arguing loudly and then heard a loud thud. When he looked out a resident's window, he saw the brothers fighting and Gould straddling Lyle on the ground. When the aide ran out onto the patio to break up the fight, the wife told him it was over.
According to the wife, the initial fighting was "a lot of wrestling around and pushing and shoving kind of thing, and it didn't last very long at all." The brothers were getting up when Lyle threw a punch, hitting Gould in the jaw. Gould reacted by pushing Lyle over a concrete railing onto the grass, approximately 4 feet below. Lyle asserts that Gould struck him first, hitting him in the jaw, and that Gould continued to hit Lyle when he fell on the ground after the first blow. Lyle claims not to have landed any blows on Gould.
Lyle lay on the grass for about 10 to 12 seconds, then got up and headed toward his automobile, followed by his two grandsons. The aide noticed Lyle's glasses on the table and took them over to him. When he gave Lyle the glasses, Lyle appeared angry and told the aide that he was coming back.
After Lyle left the home, he drove his grandchildren to a convenience store and, without ever getting out of his automobile, returned to the home about 20 minutes later. The aide testified that his work was interrupted again when he heard people yelling, The wife said she saw Lyle drive at a high rate of speed and proceed to drive across the lawn to the front of the porch.
Lyle retrieved a gun which he kept under the front passenger seat of the vehicle and began running toward the porch, yelling "Here, you mother fucker," and immediately started firing. In the meantime, the aide had come running; when he heard the shots, he stopped at the main entrance. The wife headed toward the main entrance when the shooting began to tell the aide that Lyle had a gun and to call the police. She heard some initial shots, and then Lyle started shooting at her, striking her in the upper arm and back. From where the aide stood, he saw Lyle standing on a ledge below the railing moving his gun arm up and down Gould's body as he shot him. Lyle hesitated, then jumped down and got back in his vehicle, which was parked on the lawn about 5 or 6 feet from the patio, and drove off. Gould was pronounced dead at the scene. He had been shot five times.
Lyle testified that when he was thrown off the porch, he "was so angry, [he] couldn't see straight"; he "was real angry with" his brother and "just couldn't think ... couldn't see straight." He was still angry when he returned to the home and wanted to talk to his brother about what had happened. He drove up onto the grass so that he could call Gould out to the vehicle without the wife being involved in the conversation. He said he started shooting after he saw his brother jump up and put his hand in his pocket, which led Lyle to believe Gould had a gun; he admitted, however, that he had not shot in self-defense.
Lyle testified to his close relationship with Gould. He told how Gould, 15 years younger, had lived in Lyle's home as an adolescent for about 5 years before moving south to live with his mother. During that time, Lyle provided Gould with room and board and "everything he needed" at his own expense. When Gould returned to Omaha, Lyle gave Gould an automobile and later a motorcycle. This time, both Gould and their mother lived with Lyle for about 3 years.
The wife testified that the brothers had a normal brotherly relationship and that nothing like the fight at the home had ever happened before. She said that to the best of her knowledge, Lyle had never threatened Gould in the past.
In finding Lyle guilty of the murder, the trial judge editorialized as follows:
I'm convinced in my own mind that you're a decent, hard-working man. And if you had to wait even 24 hours or go out and buy a gun and have a cooling-off period and come back, this never would have happened. That thing that you carried around for your own protection ends up destroying your brother's life and your life, and I don't think it ever saved you from any problems. All it was was the cause of all the problems you're in now....
....
... [I]t's a terrible shame that you didn't have at least 24 hours before you could take the action that you decided to take because I think, had you had that much time, this thing would never have happened.
Lyle asserts that, consistent with the evidence, the foregoing editorial comment amounts...
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TABLE OF CASES
...529, 537 Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006), 329 Luther, People v., 232 N.W.2d 184 (Mich. 1975), 284 Lyle, State v., 513 N.W.2d 293 (Neb. 1994), 510 Lynce v. Mathis, 519 U.S. 433 (1997), 41 Lynn v. State, 765 S.E.2d 322 (Ga. 2014), 504 Lyons, United States v., 731 F.2d 243 (......