State v. Manzer, S-93-747

• Decision Date: 29 July 1994
• Docket Number: No. S-93-747,S-93-747
• Citation: 519 N.W.2d 558,246 Neb. 536
• Parties: STATE of Nebraska, Appellee, v. Christopher J. MANZER, Appellant.
• Court: Nebraska Supreme Court

Page 558

519 N.W.2d 558

246 Neb. 536

STATE of Nebraska, Appellee, v. Christopher J. MANZER, Appellant.

No. S-93-747.

Supreme Court of Nebraska.

July 29, 1994.

Syllabus by the Court

1. Indictments and Informations: Homicide: Intent: Appeal and Error. An information which alleges that the defendant committed second degree murder but does not allege that the act was committed with "malice" fails to allege an essential element of the crime and is plain error.

2. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion.

John M. Gerrard, of Gerrard, Stratton & Mapes, P.C., Norfolk, for appellant.

Don Stenberg, Atty. Gen., and J. Kirk Brown, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

BOSLAUGH, Justice.

On May 27, 1993, as the result of a plea agreement, the defendant, Christopher J. Manzer, pled guilty to second degree murder, assault in the first degree, and use of a firearm to commit a felony.

On July 29, 1993, the district court sentenced the defendant to the following terms of imprisonment: count I, second degree murder, life in prison; count II, assault in the first degree, not less than 6 2/3 nor more than 20 years, to be served concurrently with the life sentence; and count III, use of a firearm to commit a felony in committing count I, not less than 6 2/3 nor more than 20 years, to be served consecutively to the prior two sentences.

The defendant has appealed to this court. His sole assignment of error is that the district court erred in imposing excessive sentences. Pursuant to Neb.Ct.R. of Prac. 7 B(2) (rev. 1992), the State has filed a motion for summary affirmance.

After staying up late the night before to work on a paper for school, the defendant rose early on the morning of November 14, 1992, to do his chores at his family's farm. After that, the defendant went to his grandfather's farm near Osmond, Nebraska, and helped haul corn for the remainder of the day.

The defendant returned to his home around 5 p.m. and announced to his parents that he would be going out later that evening. He told his father, Mark Manzer, and his mother, Faye Manzer, that he was going on a date with his girl friend and that he would return home at approximately 1:30 a.m. The defendant's father told him that he should return to the house at 1 a.m.

The defendant drove to Elgin, Nebraska, and picked up his girl friend. The couple went on a double date and spent most of the evening watching television until midnight.

The defendant took his girl friend home and then began the drive to his own home. In Pierce, Nebraska, he was stopped by a police officer for running a stop sign. Upon realizing that he would now be late and arrive at about 1:20 a.m., the defendant decided to kill his family, including himself.

Upon arriving at the family farm, the defendant went to the pumphouse and obtained a 12 gauge shotgun. He then climbed the stairs to his room in an attempt to talk himself out of proceeding with the plan.

When the defendant heard his father get up and then return to bed, he approached his parents' bedroom. He fired once at his father, striking him in the cheek area. The gun then jammed, and the defendant went outside to clear the weapon. His father stumbled into the kitchen area, and the defendant reentered the house, shooting through the door and hitting his father for the second time.

The defendant then entered the kitchen, where his father lay on the floor. The defendant's 15-year-old sister walked out of one of the bedrooms on the second floor. The defendant fired, mistaking his sister for his mother and wounding his sister in the shoulder.

The defendant climbed the stairs in an attempt to find his mother. He came upon a locked room where his two younger brothers, ages 10 and 12, and his sister were hiding. The defendant fired at the door in order to break the lock and enter the room. His brothers and sister begged the defendant to promise that he would not kill them.

The defendant instructed his sister to call a doctor for her injury; then he went outside to look for his mother, who had escaped out of the children's bedroom window. The defendant did not find his mother, and when he returned to the house, his father was regaining consciousness.

The defendant claimed that after his father called him a "fucking loser," he shot his father pointblank in the head "to put him out of his misery."

The defendant left the premises around 2 a.m. and drove around the countryside, eluding police officers. The defendant attempted to see his girl friend in Elgin. A police officer approached the defendant as he walked on foot toward his girl friend's house. At this point, the defendant turned himself in and told the authorities he was the one who had committed the murder.

The defendant was 1 month short of 18 years old when he committed the offenses. His prior offenses include just four minor traffic violations. Although the defendant was not intoxicated the night of these crimes, the defendant has a history of alcohol problems.

In State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), we held that malice is a necessary element of murder in the second degree and that an instruction that failed to include malice as an essential element of murder in the second degree was plain error and was prejudicial.

State v. Jones, 245 Neb. 821, 831, 515 N.W.2d 654, 659 (1994).

In the present case, the amended information, upon which the defendant was arraigned and sentenced, was worded in the language of Neb.Rev.Stat. § 28-304 (Reissue 1989) and did not allege "malice" as a specific element of the crime.

Under the rule of State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), the failure to include malice as an element of murder in the second degree is plain error. Accordingly, the judgments on counts I and III must be reversed and the cause remanded for further proceedings.

As to count II, the State's motion for summary affirmance is sustained.

First degree assault is a Class III felony with a penalty of 1 to 20 years' imprisonment, up to a $25,000 fine, or both. The defendant was sentenced to a term of imprisonment of not less than 6 2/3 years nor more than 20 years.

A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. State v. Philipps, 242 Neb. 894, 496 N.W.2d 874 (1993). The sentence for count II is within the statutory limits and under the circumstances of this case is not an abuse of discretion.

JUDGMENTS ON COUNTS I AND III REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

JUDGMENT ON COUNT II AFFIRMED.

WRIGHT, Justice, dissenting.

I respectfully dissent from the majority's decision, which reversed Manzer's convictions for second degree murder and use of a firearm to commit a felony because the information upon which Manzer was convicted and sentenced did not allege malice as a specific element of the crime of second degree murder.

Manzer was originally charged by information with first degree murder, first degree assault, and two counts of use of a firearm to commit a felony. At a May 27, 1993, hearing, the district court was advised of...