State v. Ryan
| Decision Date | 02 February 1996 |
| Docket Number | No. S-94-1202,S-94-1202 |
| Citation | 543 N.W.2d 128,249 Neb. 218 |
| Parties | STATE of Nebraska, Appellee, v. Dennis RYAN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction: Proof: Appeal and Error. A criminal defendant seeking 2. Postconviction: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.
postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous.
3. Jury Instructions: Proof: Appeal and Error. In an appeal based on the claim of an 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.
4. Criminal Law: Statutes: Words and Phrases. It is a fundamental principle of statutory construction that penal statutes are to be strictly construed, and it is not for the courts to supply missing words or sentences to make clear that which is indefinite, or to supply that which is not there.
5. Courts: Statutes: Words and Phrases. A state's highest court may, by authoritative interpretation, put words in a statute as if it had been so amended by the Legislature.
6. Criminal Law: Statutes. Although penal statutes are strictly construed, they are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.
7. Constitutional Law: Statutes. When a statute is susceptible of two constructions, under one of which the statute is unconstitutional or of doubtful validity, that construction which results in validity is to be adopted.
8. Constitutional Law: Statutes. An overbroad statute should be construed so as to avoid any constitutional problems.
9. Statutes: Homicide: Intent. Without the element of malice or mens rea, Neb.Rev.Stat. § 28-304(1) (Reissue 1989), the second degree murder statute, would be of doubtful validity and perhaps unconstitutional.
10. Criminal Law: Intent. Malice, in its legal sense, denotes that condition of mind which is manifested by intentionally doing a wrongful act without just cause or excuse.
11. Legislature: Criminal Law: Statutes: Intent. Legislative silence as to a mental element in a crime already so well defined in common law and statutory interpretation is not to be construed as eliminating that element from the crime.
12. Criminal Law: Statutes: Intent. A statute may be construed to include a criminal intent element absent from its face.
13. Due Process: Criminal Law: Statutes. Due process of law requires that criminal statutes be clear and that ascertainable standards of guilt be defined with sufficient definiteness to inform those subject to the statute what conduct will render them liable to punishment. A construction resulting in unreasonableness as well as absurd consequences will be avoided.
14. Constitutional Law: Statutes. A statute is unconstitutionally vague or overbroad if it proscribes legal as well as illegal conduct.
15. Criminal Law: Presumptions: Proof. A person charged with a crime is entitled to a presumption of innocence, and may insist that the State prove his guilt beyond a reasonable doubt.
16. Criminal Law: Jury Instructions. Jury instructions which set forth only the statutory elements of a crime are insufficient when they do not set forth all the essential elements of the crime.
17. Homicide: Intent: Jury Instructions: Appeal and Error. A jury instruction that fails to include malice as a material element of murder in the second degree is plain error and prejudicial.
18. Postconviction: Homicide: Intent: Jury Instructions. When the material element of malice is omitted from the second degree murder jury instruction, a defendant's conviction for second degree murder is constitutionally invalid, and postconviction relief is proper to rectify the constitutionally invalid conviction.
19. Jurisdiction: Sentences: Appeal and Error. An appellate court is compelled to accept jurisdiction when the sentence entered by the trial court is invalid due to plain error in the proceedings.
20. Judgments: Time. A void judgment may be attacked at any time in any proceeding.
21. Postconviction: Waiver: Appeal and Error. To use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless.
22. Constitutional Law: Criminal Law: Juries. The Sixth Amendment provides in criminal prosecutions the defendant's right to an impartial jury. This right to trial by jury is fundamental to the American scheme of justice and includes as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of guilt.
23. Homicide: Intent: Proof: Juries. However clear the proof may be, or however incontrovertible may seem to the court to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. The same ruling is applicable to the element of malice in a second degree murder trial.
24. Homicide: Intent. Malice is an essential element of the crime of second degree murder, and the absence of malice is not an affirmative defense.
25. Due Process: Criminal Law: Jury Instructions: Presumptions. Due process in a trial of a criminal case prohibits a jury instruction which contradicts the presumption of a defendant's innocence or shifts to a defendant the burden of persuasion on an element of the crime charged.
Appeal from the District Court for Richardson County; Robert T. Finn, Judge.
J. William Gallup, Omaha, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Dennis Ryan filed a postconviction relief motion in the district court for Richardson County asking that his conviction and sentence for second degree murder be vacated. He claimed that in its instructions, the trial court had erred in failing to include "malice" as an essential element of the crime for which he was convicted.
Following a hearing, the district court denied Ryan the relief he prayed for and Ryan timely appealed to this court from that judgment.
We find that, as a matter of law, the jury instructions given in Ryan's trial violated Ryan's rights under the U.S. and Nebraska Constitutions and that his conviction and sentence are void. As a result, we reverse the postconviction relief judgment of the district court and remand the cause to that court with direction to vacate its postconviction relief judgment and grant Ryan a new trial.
A criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous. State v. Barfoot, 248 Neb. 335, 534 N.W.2d 572 (1995). In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. See State v. Barrientos, 245 Neb. 226, 512 N.W.2d 144 (1994).
In an appeal based on the claim of an 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. Derry, 248 Neb. 260, 534 N.W.2d 302 (1995).
The facts underlying this case are fully set forth in Ryan's direct appeal. See State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987). The State charged Ryan by information with first degree murder. At trial, Ryan's major defense was his state of mind at the time of the murder. Following a jury trial, Ryan was convicted of second degree murder. He was sentenced to life imprisonment.
The jury was told in instruction No. 7 the material elements of first degree murder, second degree murder, and manslaughter. Section II of instruction No. 7 told the jury:
The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict the defendant of the crime of murder in the second degree are:
(1) That defendant Dennis Ryan, on or about April 30, 1985, did kill James Thimm, either alone or while aiding and abetting another;
(2) That he did so in Richardson County, Nebraska;
(3) That the defendant did so intentionally, but without premeditation.
The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material elements of the crime of murder in the second degree in order to convict the defendant of the crime of murder in the second degree.
If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements of this Section II is true, it is your duty to find the defendant guilty of the crime of murder in the second degree done purposely and maliciously but without deliberation and premeditation, and you shall so indicate by your verdict, unless you find that the defendant is not responsible by reason of insanity as set forth in Instruction No. 7A .
If, on the other hand, you find that the State has failed to prove beyond a reasonable doubt any one or more of the material elements in Section I and that the State has failed to prove any one or more of the material elements in Section II, it is your duty to find the defendant not guilty of the crime of murder in the...
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