State v. Morrow
| Decision Date | 22 March 1991 |
| Docket Number | No. 90-127,90-127 |
| Citation | 237 Neb. 653,467 N.W.2d 63 |
| Parties | STATE of Nebraska, Appellee, v. Joseph L. MORROW, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Homicide: Lesser-Included Offenses: Jury Instructions. Where murder is charged, the court is required, without request, to charge on such lesser degrees of homicide as to which the evidence is properly applicable.
2. Homicide: Words and Phrases. As used in Neb.Rev.Stat. § 28-305(1) (Reissue 1989), the phrase "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. Rather, in relation to manslaughter, a sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control.
3. Trial: Motions for Mistrial. When a party has knowledge during trial of irregularity or misconduct, he must timely assert his right to a mistrial.
4. Trial: Evidence: Waiver: Appeal and Error. If a party does not make a timely objection to evidence, the party waives the right on appeal to assert prejudicial error.
5. Trial: Juries: Discrimination: Appeal and Error. The court's determination of the adequacy of the State's "neutral explanation" of its challenges will not be reversed upon appeal unless clearly erroneous.
6. Convictions: Appeal and Error. In determining the sufficiency of the evidence to support a finding of guilt in a criminal case, this court does not resolve conflicts in the evidence, determine the plausibility of explanations, or weigh the evidence. Those matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.
7. Verdicts: Appeal and Error. After a jury has considered all the evidence and returned a verdict of guilty, that verdict may not as a matter of law be set aside on appeal for insufficiency of evidence if the evidence sustains some rational theory of guilt.
8. Evidence: Intent. The law is settled that independent evidence of specific intent is not required. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.
James Martin Davis, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Linda L. Willard, Lincoln, for appellee.
A jury found defendant, Joseph L. Morrow, guilty of the two counts charged in the information, count I, second degree murder, see Neb.Rev.Stat. § 28-304(1) (Reissue 1989), and count II, using a firearm to commit a felony, see Neb.Rev.Stat. § 28-1205(1) (Reissue 1989), in the shooting death of Thomas Jordan. Defendant was sentenced to 40 years' imprisonment on count I and to 5 to 10 years' imprisonment on count II. The sentence on count II is to run consecutively to the sentence on count I.
Section 28-304 provides in part: "(1) A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation."
Neb.Rev.Stat. § 28-305 (Reissue 1989) provides in part: "(1) A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the commission of an unlawful act."
Section 28-1205 provides:
(1) Any person who uses a firearm ... or any other deadly weapon to commit any felony which may be prosecuted in a court of this state ... commits the offense of using firearms to commit a felony.
....
(3) The crime defined in this section shall be treated as a separate and distinct offense from the felony being committed, and sentences imposed under the provisions of this section shall be consecutive to any other sentence imposed.
At the court's instruction conference, defendant requested the court to include in the jury instructions the crime of voluntary manslaughter as a lesser-included offense of the crime of second degree murder. The request was denied; however, the court did instruct the jury on the crime of involuntary manslaughter as a lesser-included offense of second degree murder.
After defendant's motion for a new trial was denied, he perfected his appeal to this court, assigning five errors: (1) the court's refusal to instruct the jury on the lesser-included offense of voluntary manslaughter; (2) the court's instruction to the jury as to transfer of intent; (3) the court's failure to either declare a mistrial or give a cautionary instruction to the jury because of prejudicial testimony of Officer Lanny Lenker; (4) the court's failure to reinstate two black jurors peremptorily stricken from the jury panel by the prosecutor, thereby denying defendant a fair trial; and (5) the insufficiency of the evidence to support the guilty verdicts.
On Sunday, July 2, 1989, at approximately 1:30 a.m., Morrow, a black person, was at 3602 Lake Street, Omaha, Nebraska, standing next to his car in the parking lot of M & B's liquor store, talking with friends. In the same area there were more than 100 people visiting and milling around, including Rodney Glass and several other members of an Omaha gang called the Crips who had just left a Crip party nearby, where alcoholic liquor and illegal drugs were consumed and used. The victim, Jordan, who was intoxicated and described as acting "hyper," was moving among the crowd, complaining about Morrow and jumping on a car. Shortly thereafter, Glass, along with several Crips, crossed Lake Street and headed in the direction of Morrow. Glass was intoxicated and agitated because of some comments about the Crips attributed to defendant. Glass, cursing as he walked, went up to the defendant and stood directly in front of him, confronting him with profanity. Standing at his left were Joseph Gray and the victim, Jordan. Meanwhile, six or seven other Crips stationed themselves in a semicircle in front of and around Morrow.
The exchange of profanity continued between Morrow and Glass when Morrow told Glass to take his business elsewhere. After further exchanges, Glass threw his hat down and stated that he was going to "kick [defendant's] ass."
Morrow got his gun, approached close to Glass, and fired the gun while either striking or pointing the gun at Glass. Glass was not wounded by the shot; however, he somehow was cut on the chin and apparently was knocked to the ground by the force of the blow. Immediately after the shooting, the parking lot cleared rapidly. It was only then that Jordan was found on the ground, fatally wounded. Morrow left the area immediately. He testified, "I had thought Rodney had got shot, because when I hit him my gun went off and he fell, so I thought he had got shot." Morrow later learned that Jordan had been shot. Morrow consulted a lawyer and turned himself in to the police after July 4. While released on bond, Morrow was stopped in a car on August 3, 1989, by the Omaha police, who found a .45-caliber automatic pistol under the seat of the car.
As later fully discussed, there is a conflict in the evidence concerning the kind and use of the gun that fired the fatal shot. Some of the evidence indicates that Morrow's gun was discharged only one time. There was other evidence from witnesses that they heard two or three shots fired. Jordan suffered a single gunshot wound to the chest. The bullet was identified by an expert as a .38-caliber hollow-point bullet fired from either a .38- or .357-caliber revolver. Glass did not remember ever seeing Morrow's gun. Defendant testified that the weapon he used to strike Glass was his .45-caliber automatic pistol, which he carried with him for personal protection. This gun was test fired and determined not to be the murder weapon. There is no evidence that any firearms, ammunition, or cartridge casings of any type were recovered at the crime scene.
The State's theory of prosecution was that Morrow, at close range, pointed a .38- or .357-caliber gun at Glass' chin and intentionally pulled the trigger and that the bullet somehow struck and killed Jordan. The State claims the theory of transferred intent is applicable, namely, that Morrow intended to kill Glass but killed Jordan instead.
The defendant's theory of the case was that Morrow, during a confrontation and argument with Glass and using a .45-caliber automatic pistol, struck Glass with the gun and it accidentally discharged. Morrow denied, however, that this was the firearm that killed Jordan. Through counsel, however, it is argued that even if the firearm Morrow used to strike Glass was the firearm that killed Jordan, his conduct would only constitute involuntary manslaughter, if the shooting was unintentional, or voluntary manslaughter, since the shooting was upon a sudden quarrel.
Defendant first assigns as error the court's refusal to instruct the jury on the crime of voluntary manslaughter as a lesser-included offense of second degree murder, arguing that there was evidence of a sudden quarrel, requiring an instruction on that crime to be submitted to the jury.
The crime of voluntary manslaughter is described in § 28-305(1): "A person commits manslaughter if he kills another without malice ... upon a sudden quarrel...." Also in § 28-305(1), the crime of involuntary manslaughter is described as the unlawful but unintentional killing of a person as the result of the actor's commission of an unlawful act. See State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).
Malice denotes that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause. Absence of malice may exist where the killing occurs upon a sudden quarrel. "[W]here murder is...
To continue reading
Request your trial
-
State v. Iromuanya
...second degree murder and, under the doctrine of transferred intent, the conviction of second degree murder. See State v. Morrow, 237 Neb. 653, 467 N.W.2d 63 (1991) (holding evidence sufficient to support second degree murder conviction where defendant pointed gun at neck of person with whom......
-
State v. Nielsen
...his wife was armed when they were shot. Malice may be inferred from words passing between defendant and victim. See, State v. Morrow, 237 Neb. 653, 467 N.W.2d 63 (1991); State v. Bautista, 193 Neb. 476, 227 N.W.2d 835 (1975). Rick Grabbe testified at trial that he saw Nielsen point his rifl......
-
State v. Wilson
...at 20. By not moving for a mistrial, Wilson failed to preserve any error created by the prosecutor's misconduct. See State v. Morrow, 237 Neb. 653, 467 N.W.2d 63 (1991). An appellate court reserves the right to address plain error of such a nature that it would result in a miscarriage of ju......
-
State v. Fahlk, S-92-1180
...party has knowledge during trial of irregularity or misconduct, he must timely assert his right to a mistrial.' " State v. Morrow, 237 Neb. 653, 661, 467 N.W.2d 63, 69 (1991) (quoting State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (1984)). "One may not waive an error, gamble on a favorable......