State v. McHenry

• Decision Date: 06 January 1995
• Docket Number: No. S-93-1020,S-93-1020
• Citation: 525 N.W.2d 620,247 Neb. 167
• Parties: STATE of Nebraska, Appellee, v. Darrin McHENRY, Appellant.
• Court: Nebraska Supreme Court

Page 620

525 N.W.2d 620

247 Neb. 167

STATE of Nebraska, Appellee, v. Darrin McHENRY, Appellant.

No. S-93-1020.

Supreme Court of Nebraska.

Jan. 6, 1995.

Syllabus by the Court

1. Jury Instructions: Proof: Appeal and Error. In an appeal of an action based on a claim of erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

2. Proof. The State must prove beyond a reasonable doubt every element of a charged offense.

3. Due Process: Jury Instructions. When a court improperly defines reasonable doubt in its jury instructions, due process is not achieved.

4. Constitutional Law: Jury Instructions: Proof: Words and Phrases. The proper inquiry is not whether an instruction "could have" been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it. The constitutional question is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.

5. Jurors. A juror must have a reasonable doubt that the defendant is guilty in order to acquit the defendant; the jury does not have to be convinced that the defendant is not guilty in order to acquit.

6. Constitutional Law: Convictions: Due Process: Proof. The Due Process Clause requires the government to prove a criminal defendant's guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires.

7. Jury Instructions: Appeal and Error. The instructions given must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.

8. Venue. Neb.Rev.Stat. § 29-1301 (Reissue 1989) permits a change of venue when a defendant cannot receive a fair and impartial trial in the county in which the offense was committed.

9. Venue: Appeal and Error. A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof.

10. Juror Qualifications. The law does not require that a juror be totally ignorant of the facts and issues involved; it is sufficient if the juror can lay aside his or her impressions or opinions and render a verdict based on evidence presented in court.

11. Trial: Juries. Except when there is a showing that without sequestration a party's rights would be prejudiced, a party has no right to examine a venireperson out of the presence of all other venirepersons.

12. Trial: Juries. The retention or rejection of a venireperson as a juror is a matter of discretion with the trial court.

13. Juror Qualifications. A juror who has indicated an inability to fairly and impartially determine guilt by refusing to subordinate his or her own personal views must be excused for cause.

14. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to grant a mistrial due to prosecutorial misconduct, a defendant must show that a substantial miscarriage of justice has actually occurred.

15. Judgments: Motions for Mistrial: Juries. Reversal of a judgment may be ordered for failure of the trial court to grant a mistrial when a proper admonition or instruction to the jury is not given.

Richard A. Birch, of Nielsen & Birch, and Patrick B. Hays, North Platte, for appellant.

Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.

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

WHITE, Justice.

Following a jury trial, Darrin McHenry was found guilty of count I, aiding and abetting first degree murder; count II, aiding and abetting attempted robbery; and count III, first degree sexual assault. McHenry was sentenced to life imprisonment for count I, 6 2/3 to 20 years' imprisonment for count II, and 16 2/3 to 50 years' imprisonment for count III. McHenry was also ordered to serve 4 days of each year in solitary confinement. McHenry appeals his convictions and sentences.

Richard Sterkel was found dead near the American Legion Club in North Platte, Nebraska. An autopsy revealed that Sterkel died from strangulation and multiple injuries to the head, neck, and chest.

McHenry, Frank Ladig, Antonio Estrada, Nordel Moore, and others were living under the South Platte River Bridge and at an encampment near the American Legion Club. Sterkel was passing by the campsite behind the legion club when the group invited him to drink with them. Sterkel stayed with the group for a few days. During that time the group drank heavily, swam in the river, and played cards. On July 28, 1993, the day of Sterkel's death, the group was encamped under the bridge because it had started to rain. According to Ladig, after drinking under the bridge and playing cards, McHenry stood up and said, "Let's do it." McHenry, Ladig, and Estrada then began beating Sterkel. McHenry asked Sterkel to give up his wallet. Sterkel claimed his wallet was at the other campsite, so the parties took Sterkel back to the campsite near the legion club, hitting and kicking him along the way. The group searched the legion club campsite for Sterkel's wallet but could not find it. Ladig testified that he and Estrada left the area, and McHenry and Moore stayed on, beating and sexually assaulting Sterkel.

McHenry claims that the district court erred in six respects. McHenry alleges in his first assignment of error that the district court failed to properly instruct the jury on the burden of proof needed to convict McHenry. McHenry claims that the judge's instructions to the jury lowered the burden of proof by which the State must prove McHenry guilty of the crimes charged.

In an appeal of an action based on a claim of erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. State v. Gatson, 244 Neb. 231, 505 N.W.2d 696 (1993); State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991). The State must prove beyond a reasonable doubt every element of the charged offense. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Gatson, supra; State v. Garza, 241 Neb. 934, 492 N.W.2d 32 (1992). "[W]hen a court improperly defines reasonable doubt in its jury instructions, due process is not achieved." Garza, 241 Neb. at 959, 492 N.W.2d at 49. See, Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990); In re Winship, supra.

[T]he proper inquiry is not whether the instruction "could have" been applied in unconstitutional manner, but whether there is reasonable likelihood that the jury did so apply it. [Citation omitted.] The constitutional question ... is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.

Victor v. Nebraska, 511 U.S. 1, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). Thus, the question becomes whether there is a reasonable likelihood that the jury in McHenry's case misunderstood the reasonable doubt instruction given by the court so as to allow conviction based on insufficient proof. The district court read the following instruction before the trial began:

A reasonable doubt is a doubt formed upon reason. It is not a fanciful doubt, a whimsical doubt or a capricious doubt. Proof beyond a reasonable doubt requires proof so compelling as to convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs. However, if you are not satisfied of the defendant's guilt to that extent, then reasonable doubt exists and the defendant must be found not guilty.

The court then stated:

You have to read the instructions and decide whether the presumption has been met. I think the instruction is clear. It's a doubt that you would rely upon in your own personal affairs. It's something that would convince you in something you do personally. It's a heavy burden. These are not light things to set aside. They are very important. They're absolutely critical.

(Emphasis supplied.)

The judge's explanation of the reasonable doubt standard raises the level of doubt a juror needs to find McHenry not guilty, thereby lowering the State's burden to prove McHenry guilty. A juror must have a reasonable doubt that the defendant is guilty in order to acquit the defendant; the jury does not have to be convinced that the defendant is not guilty in order to acquit.

The trial court judge in McHenry's case explained the reasonable doubt standard so that, in order to acquit McHenry, a juror would have to be convinced of the fact that McHenry was not guilty instead of having a reasonable doubt as to his guilt. Thus, the judge lowered the standard by which the State had to prove McHenry guilty of the crime with which he was charged. "The Due Process Clause requires the government to prove a criminal defendant's guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires." Victor, 511 U.S. at ----, 114 S.Ct. at 1251. See Gatson, supra. That is exactly what the trial court judge did in McHenry's case, and thus there is a reasonable likelihood that the jury did indeed convict on a lesser showing than due process requires. We note that the actual jury instruction itself meets due process requirements in that it adequately explains to the jury the level of doubt needed to find McHenry not guilty. Indeed, we approved of a very similar instruction in Garza, supra. It is the judge's explanation of that jury...