State v. Redmond
| Decision Date | 10 August 2001 |
| Docket Number | No. S-99-1456.,S-99-1456. |
| Citation | 262 Neb. 411,631 N.W.2d 501 |
| Parties | STATE of Nebraska, Appellee, v. Steven REDMOND, Appellant. |
| Court | Nebraska Supreme Court |
James R. Mowbray and Robert W. Kortus, of the Nebraska Commission on Public Advocacy, for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
Following the fatal shooting of Mark B. Clinton —a maintenance worker at the Kimball County Courthouse—Steven Redmond was charged with first degree murder. The killing took place before our decision in State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), which held that malice was not an essential element of second degree murder and which overruled previous cases that held otherwise. While Redmond's case was pending, Burlison was decided. Following a bench trial, the district court made a factual finding that the State had failed to prove premeditated malice. The district court then found Redmond guilty of second degree murder. In reaching its determination, the district court discussed the effect of Burlison on its decision and determined that Burlison applied to the case.
On appeal, Redmond argues that the retroactive application of Burlison denied him due process under the 14th Amendment to the U.S. Constitution and Neb. Const. art. I, § 3, because the State failed to prove malice beyond a reasonable doubt. Thus, if Burlison had not been retroactively applied to his case, under the law before Burlison, Redmond would have been convicted of manslaughter instead of second degree murder. We determine that Redmond was not denied due process, and we affirm.
Redmond assigns that the district court erred in (1) failing to include malice as an element of second degree murder when the offense occurred before State v. Burlison, supra, was decided and (2) finding there was sufficient evidence to convict him of second degree murder and use of a deadly weapon to commit a felony.
At trial, a Kimball police officer, Phillip L. Short, testified that at about 1:10 a.m. on August 5, 1998, an intoxicated Redmond was involved in an altercation with a bartender at a local bar. When the police arrived, Redmond began yelling that he wanted the Federal Bureau of Investigation (FBI) to be called and that the police in Kimball were selling drugs. As a result, Redmond was arrested and taken to the Kimball County Courthouse where the sheriff's office was located. While at the courthouse, Redmond requested an ambulance due to an injury to his face and past medical problems. An ambulance was called, and Redmond was taken to the hospital.
Short testified that Redmond had been behaving in a belligerent manner both before and during his arrest. While at the hospital, Redmond again became belligerent, started yelling at hospital personnel, and demanded to see Short's supervisor. The chief of police, Billie L. Shank, was then called. Shank testified that when he arrived at the hospital, Redmond was acting irrationally. Due to previous medical problems Redmond had experienced and the fact that most of the charges against him would be misdemeanors, the police released Redmond to the care of his father instead of placing him in jail.
Amanda Colburn Stewart, the dispatcher on duty at the sheriff's office, testified that at approximately 3 a.m., Redmond called the sheriff's office and asked for the telephone number for the FBI. Stewart testified that at approximately 5:30 a.m., a motion sensor alerted her that a person was in the lobby of the building. Through a television monitor connected to a surveillance camera, Stewart saw a man, later identified as Redmond, standing in the doorway. Stewart placed a call to the telephone in the lobby. The telephone rang three times, and then Stewart saw the door open and Clinton emerge from inside the courthouse, so she hung up the telephone.
Stewart testified that Clinton and Redmond had a short conversation and that Clinton then grabbed Redmond's jacket and pushed him up against the wall. For a period of time, Clinton and Redmond were then partially in the "blackout area," an area of the lobby that could not be seen from the surveillance system. Stewart next observed Redmond's arms come up and saw that he had what she thought resembled a cane in his right hand. Stewart testified that Clinton then turned to his left and reached for the door with his right arm. Stewart stated that Clinton was not facing Redmond and had already turned toward the door. Stewart then realized that Redmond had a rifle instead of a cane. Stewart looked away from the monitor in order to call Short and, during that time, heard two gunshots. Stewart looked up at the monitor and could not see Clinton. Stewart observed Redmond fire a gun at the door and later observed him reach in through the glass, open the door, and go into the courthouse from the lobby. Stewart heard some shots fired inside the courthouse. Stewart then called for additional help, and Shank used the fire escape to reach the sheriff's office. Watching the monitor, Stewart and Shank then saw Redmond emerge in view of the camera. Stewart was unable to observe much more, and Redmond went out on the front porch and beyond the view of the cameras.
After Redmond went outside, he fired more shots, including shooting at a parked police cruiser. Redmond eventually surrendered to a deputy sheriff. Clinton's body was found in the lobby area, lying against the door. Authorities seized a rifle and a handgun from Redmond. It was later determined that a bullet from the handgun was the cause of Clinton's death. Autopsy photographs show a bullet wound in the bottom left of Clinton's right shoulder blade.
Following trial, the court found Redmond guilty on count I of second degree murder and guilty on count II of using a deadly weapon to commit a felony. In reaching this determination, the court determined that the State had not met its burden of proving premeditated malice beyond a reasonable doubt. Thus, the court found that the State had failed to prove that Redmond was guilty of first degree murder. The court then found Redmond guilty of second degree murder based on the factual finding that he intentionally shot Clinton but without premeditation. In reaching this determination, the court relied on Stewart's testimony and made a finding of fact that Clinton had been shot in the back, indicating that the shooting did not occur as part of the struggle between Redmond and Clinton. The court also reasoned that Redmond's intent was shown because, following the shooting, he fired more shots and entered the courthouse instead of tending to Clinton's wounds.
The district court then specifically addressed State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), stating the following:
Redmond was sentenced on count I for a period of 40 to 60 years' imprisonment and on count II to a period of 4 to 6 years' imprisonment, with the sentences to run consecutively. Redmond appealed. During the course of this appeal, the U.S. Supreme Court decided Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), a case involving the retroactive application of a judicial decision. Redmond filed a motion seeking to allow the parties to file supplemental briefs to address the effect of Rogers on this case. We granted Redmond's motion.
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001); State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Sanchez-Lahora, 261 Neb. 192, 622 N.W.2d 612 (2001); State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).
Because Redmond killed Clinton before State v. Burlison, supra, was decided, he contends that Burlison cannot be applied to his case. Redmond...
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