State v. Pruett
| Decision Date | 01 February 2002 |
| Docket Number | No. S-01-187.,S-01-187. |
| Citation | 638 N.W.2d 809,263 Neb. 99 |
| Parties | STATE of Nebraska, Appellee, v. Stuart R. PRUETT, Appellant. |
| Court | Nebraska Supreme Court |
Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.
The appellant, Stuart R. Pruett, was convicted by a district court jury of manslaughter by unintentionally causing another's death while committing the offense of reckless assault. Pruett was also convicted of using a weapon to commit a felony. On appeal, Pruett argues that he cannot be convicted of use of a weapon to commit a felony when the underlying felony is an unintentional crime. He further claims that the district court erred in various respects regarding evidentiary and instruction issues. We affirm Pruett's conviction and sentence for manslaughter but set aside the verdict and vacate the sentence for use of a weapon to commit a felony because both manslaughter and reckless assault are unintentional crimes.
Pruett was charged in a two-count information with manslaughter and use of a weapon to commit a felony after he unintentionally shot and killed Joseph Curtis Wakan. Count I of the information charged that Pruett killed Wakan unintentionally while committing the unlawful act of assault in the second degree by recklessly causing serious bodily injury to Wakan with a dangerous instrument. Pruett filed a motion to quash count II, use of a weapon to commit a felony, because he was charged with using a weapon to commit an unintentional act. The district court overruled the motion to quash, and Pruett appealed. We determined that there was not a final, appealable order and dismissed the appeal for lack of jurisdiction. State v. Pruett, 258 Neb. 797, 606 N.W.2d 781 (2000).
At trial, Pruett's fiance, Michelle Strange, testified that Pruett purchased a.25-caliber semiautomatic gun in June 1998. After the purchase, Pruett and Strange took the gun out in the country and fired it. Strange testified that it fired easily. She stated that on June 30, she and Pruett met his friends, Shane Chandler, James Gates, and Wakan at a truckstop. Pruett then drove them to his home in Lincoln. On the way to Lincoln, Pruett showed the three friends the gun.
Chandler testified that Pruett showed him and his companions a gun while in the car and that when the group arrived at Pruett's residence, they sat down, started talking, and smoked marijuana. He believed that the gun was set on the coffee table. He stated that after the group sat there for awhile, Pruett got up and fired a round from the gun into a telephone book. Pruett then laughed because his actions made everyone jump. At that point, the group began asking Pruett questions about how the gun worked and asked him to unload the gun, reload it, and cock it. Pruett then demonstrated these techniques and let them hold the gun.
Chandler testified that after Pruett showed the gun to the group, they smoked more marijuana. He stated that at various times, Pruett picked up the gun and pointed it at several of the people in the room. According to Chandler, Wakan went to the kitchen to get something to eat, and while he was gone, Pruett dug the empty bullet out of the telephone book. Pruett told Chandler that "he was going to mess with Wakan, play with him." Pruett then put two pieces of the bullet from the telephone book together so that they looked like a normal bullet and placed the "dummy round" in the top of the clip. Pruett then showed Chandler that after the gun was cocked and the trigger pulled, nothing would happen. Pruett then took the dummy round out, put it back together, and loaded it into the top of the clip. As Pruett was loading the gun, Wakan came out of the kitchen, and Pruett showed Wakan the dummy round as it was being placed in the top of the clip. Chandler testified that Pruett then raised the gun, fired it, and instead of a blank round, the gun fired an actual round, striking Wakan. Wakan was later pronounced dead.
In a taped interview given to police, Pruett stated that he purchased the gun for protection and that the gun was very easy to fire but did not necessarily have a hair trigger. According to Pruett, he had been playing with the gun by taking the clip out so it could not fire and then aiming it at people. He admitted smoking marijuana and firing a round into the telephone book to scare everyone and later using that bullet to make a dummy round. He showed Wakan how the dummy round worked, popped the dummy round out, moved his hand to the side while holding the gun, and the gun went off. Pruett then assisted the others in getting medical assistance for Wakan. During trial, Pruett objected to testimony that he had smoked marijuana on the night Wakan was killed. He argued that such evidence was uncharged misconduct and that under Neb.Rev.Stat. § 27-404 (Reissue 1995), the State was required to show the purpose for which the testimony was offered. He also moved that any portion of his statement referring to marijuana use be redacted. The trial court determined that the evidence was not subject to § 27-404 and overruled Pruett's motion and objections. Pruett proposed a jury instruction consistent with his objections, but the requested instruction was not given. The court did instruct the jury that evidence Pruett may have been smoking marijuana was received for the purpose of describing the circumstances surrounding Wakan's death. The instruction stated that "[s]uch evidence is not admissible to prove Mr. Pruett's character in order to show that he acted in conformity therewith and you may not consider this evidence for such purpose."
Dr. Matthias Okoye, a forensic pathologist, testified that an autopsy was performed by one of his colleagues. Okoye reviewed the autopsy reports and photographs taken at the time of the autopsy. He also examined the organs and microscopic tissue sections taken at the autopsy. He opined that the cause of death was from a gunshot wound. During Okoye's testimony, autopsy photographs, exhibits 39 through 54, were entered into evidence over Pruett's hearsay objections. Pruett requested that the jury be instructed that they could not consider Okoye's testimony about facts and data not directly perceived by him. The court did not give the requested instruction.
At the end of the State's case, Pruett moved to dismiss the charge of use of a weapon to commit a felony. The motion was overruled. Pruett did not present any evidence. The jury was instructed on the statutory definition of "recklessly." Pruett requested that the jury also be instructed on the definition of "accident." The district court did not give the requested instruction.
The jury found Pruett guilty on both counts. Pruett's motion for a new trial was overruled, and he was sentenced. Pruett appeals.
Pruett lists 26 assignments of error, which, rephrased, are that the district court erred in (1) overruling his motion to quash, overruling his motion for a directed verdict, and instructing the jury on the count of use of a firearm to commit a felony; (2) allowing evidence that he smoked marijuana on the night Wakan was killed and refusing his requested jury instruction regarding marijuana use; (3) overruling his hearsay objection regarding Okoye's testimony about facts not directly perceived by Okoye and refusing his requested jury instruction; (4) refusing to instruct the jury on the definition of "accident"; and (5) overruling his motion to dismiss when there was insufficient evidence to convict him.
Interpretation of a statute presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001).
Whether jury instructions given by a trial court are correct is a question of law. State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).
Pruett contends that he cannot be convicted of both manslaughter and use of a weapon to commit a felony because both manslaughter and the act of reckless assault are unintentional crimes. Pruett argues that a person can be convicted of use of a weapon to commit a felony only when the underlying felony is an intentional crime.
Neb.Rev.Stat. § 28-1205(1) (Reissue 1995) provides:
Any person who uses a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state or who unlawfully possesses a firearm, knife, brass or iron knuckles, or any other deadly weapon during the commission of any felony which may be prosecuted in a court of this state commits the offense of using a deadly weapon to commit a felony.
In State v. Ring, 233 Neb. 720, 724, 447 N.W.2d 908, 911 (1989), applying principles of statutory construction, we held that the language "`to commit any felony'" in § 28-1205 is synonymous with "`for the purpose of committing any felony.'" We further explained that the purposes behind § 28-1205 are to discourage individuals from employing deadly weapons in order to facilitate or effectuate the commission of felonies and to discourage individuals from carrying deadly weapons while they commit felonies. We then stated, "It cannot reasonably be said that § 28-1205 will dissuade a person from using a deadly weapon to commit an unintentional felony; the two concepts are logically inconsistent." Ring, 233 Neb. at 724, 447 N.W.2d at 911. As a result, we concluded that when the felony which served as the basis of the use of a weapon charge was an unintentional crime, the accused could not be convicted of use of a weapon to commit a felony.
Under Neb.Rev.Stat. § 28-305(1) (Reissue 1995), "[a...
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