State v. Myers
| Decision Date | 14 January 1994 |
| Docket Number | No. S-92-1195,S-92-1195 |
| Parties | STATE of Nebraska, Appellee, v. Darren Lee MYERS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Appeal and Error. Ordinarily, to be considered by an appellate court, errors must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred.
2. Appeal and Error. Although an appellate court does not consider assignments of error not listed and discussed in the briefs, it always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage 3. Homicide: Lesser-Included Offenses: Jury Instructions. When murder is charged, the court is required to charge on such lesser degrees of homicide as to which the evidence is properly applicable.
to the integrity, reputation, or fairness of the judicial process.
4. Homicide: Intent. The essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously.
5. Trial: Judges: Jury Instructions. It is the duty of the trial judge to instruct the jury on the pertinent law of the case, whether requested to do so or not, and an instruction or instructions which by the omission of certain elements has the effect of withdrawing from the jury an essential issue or element in the case is prejudicially erroneous.
6. Jury Instructions: Appeal and Error. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal absent plain error indicative of a probable miscarriage of justice.
7. Jury Instructions: Appeal and Error. A party who does not request a desired jury instruction cannot complain on appeal about incomplete instructions.
8. Jury Instructions: Appeal and Error. When a trial court fails, after specific request by the defendant, to define in a jury instruction a word which makes up an essential element of the crime charged, such failure is prejudicial error requiring reversal.
9. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
10. Jury Instructions: Appeal and Error. If the jury instructions, when read together, correctly state the law, are not misleading, and adequately state the issues, there is no prejudicial error.
11. Self-Defense. A defendant asserting self-defense as justification for the use of force must have a reasonable and good faith belief in the necessity of such force.
12. Self-Defense. A defendant's claim of self-defense is a question of fact for the jury.
13. Self-Defense. The question of whether a defendant has a reasonable and good faith belief in the necessity to use force is a question of fact to be determined by a jury and is not to be determined solely by the defendant's own subjective belief in the necessity to use force.
14. Self-Defense. The law permits the use of deadly force only when the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat.
15. Trial: Evidence: Waiver: Appeal and Error. If a party does not make a timely objection to the receipt of evidence at trial, the party waives the right on appeal to assert prejudicial error in the reception of such evidence.
16. Trial: Verdicts: Rules of Evidence: Appeal and Error. A litigant is not entitled to silently allow the opposing party to produce evidence and then, upon entry of an adverse verdict, wander among the Nebraska Evidence Rules on appeal, in hopes of obtaining a reversal.
17. Motions to Strike: Jury Instructions. Ordinarily, when an objection to or motion to strike improper evidence is sustained and the jury is instructed to disregard it, such instruction is deemed sufficient to prevent prejudice.
18. Jury Instructions: Evidence: Appeal and Error. The test to determine whether an instruction to disregard improper evidence is sufficient to prevent prejudice to the defendant is whether the remark which the jury was instructed to disregard, when viewed against the backdrop of all the evidence, so tainted the entire proceedings that the accused did not have a fair trial.
19. Due Process: Miranda Rights: Prosecuting Attorneys: Impeachment. The Due Process Clause of the 14th Amendment 20. Trial: Waiver: Appeal and Error. One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error.
forbids prosecutors from using a defendant's postarrest, post-Miranda silence for impeachment purposes.
21. Criminal Law: Trial: Prosecuting Attorneys: Juries. It is highly improper and generally prejudicial for a prosecuting attorney in a criminal case to declare to the jury his personal belief in the guilt of a defendant, unless such belief is given as a deduction from evidence.
22. Trial: Witnesses. An interrogator may not inquire of a witness, "Isn't it true that you told X that you saw Y shoot Z?" leaving the impression that such was the case, and then not call X to establish that fact.
23. Weapons: Sentences. Using a firearm to commit a felony shall be treated as a separate and distinct offense from the felony being committed, and sentences imposed for using a firearm to commit a felony shall be consecutive to any other sentence imposed.
Arthur R. Langvardt, for appellant.
Don Stenberg, Atty. Gen., and Donald A. Kohtz, for appellee.
Because it was plain error to omit the element of "malice" from the jury instructions defining second degree murder and to omit from the jury instructions that the kinds of homicides instructed upon were felonies, Darren Lee Myers' convictions of second degree murder and use of a firearm to commit a felony are reversed, and he is granted a new trial.
Myers was charged by information with first degree murder and use of a firearm to commit a felony. A jury in the district court for Adams County rejected Myers' self-defense claim and convicted him of second degree murder in the January 24, 1992, shooting death of Kervin Thomas. The jury also convicted Myers of use of a firearm to commit a felony. Myers was sentenced to life imprisonment for the homicide conviction and 5 to 15 years' imprisonment for the firearm conviction, the sentences to run concurrently.
Restated, Myers' complaints on appeal are that (1) the trial court erred in instructing the jury, (2) prosecutorial misconduct denied him a fair trial, (3) his sentence is excessive, and (4) the trial court erred in overruling his motion for a new trial.
Myers complains that although he had been charged with use of a firearm to commit a felony, the jury was not instructed that any of the other offenses submitted to the jury were, in fact, felonies. He also contends that the jury was improperly instructed on self-defense.
Before reviewing Myers' assignments of error, we note that the trial court omitted the element of malice from its instruction on second degree murder. Although Myers made no objection to that instruction, we find that omission to be plain error and elect to review that issue first.
We are not unmindful that ordinarily, to be considered by an appellate court, errors must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred. See, Neb.Ct.R. of Prac. 9D(1)d (rev. 1992); State v. Vermuele, 241 Neb. 923, 492 N.W.2d 24 (1992). Although an appellate court does not consider assignments of error not listed and discussed in the briefs, it always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Design Data Corp. v. Maryland Cas. Co., 243 Neb. 945, 503 N.W.2d 552 (1993). See, also, Neb.Rev.Stat. § 25-1919 (Cum.Supp.1992).
In Myers' case, the court was correct in instructing the jury on the three kinds of homicide, that is, first degree murder and second degree murder, and manslaughter. See State v. Morrow, 237 Neb. 653, 467 N.W.2d 63 (1991) (). The record shows that, in its second degree murder instruction, the trial court neither included nor defined "malice" as an element of second degree murder.
Prior to the adoption of the current criminal code in 1977, the second degree murder statute defined such a killing as one done "purposely and maliciously." Neb.Rev.Stat. § 28-402 (Reissue 1975). The current code states that "[a] person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation." Neb.Rev.Stat. § 28-304 (Reissue 1989). It does not mention malice.
However, this court has continued to require malice as an element of second degree murder. Section 28-304 became effective on January 1, 1979. See, 1977 Neb.Laws, L.B. 38, § 19; 1978 Neb.Laws, L.B. 748, § 54. In State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983), this court affirmed the defendant's second degree murder conviction for the May 1, 1980, slaying of his wife. Although the crime in Rowe occurred after the effective date of the new statute, this court held that the essential elements in the crime of murder in the second...
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...court, in its denial of Williams' postconviction motion, was most critical of this court's reasoning and holdings in State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), and its progeny: State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992); State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (199......
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...227 Neb. at 570, 418 N.W.2d at 597. After determining that the error was not harmless, we reversed the conviction. In State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), the defendant admitted the killing wit......
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State v. Vela, S-07-138.
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