State v. Secret
| Decision Date | 02 December 1994 |
| Docket Number | No. S-93-1039,S-93-1039 |
| Citation | 524 N.W.2d 551,246 Neb. 1002 |
| Parties | STATE of Nebraska, Appellee, v. Phillip SECRET, Jr., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Collateral Estoppel: Appeal and Error. The applicability of the doctrine of collateral estoppel constitutes a question of law. With regard to such a question, an appellate court is obligated to reach a conclusion independent from the lower court's conclusion.
2. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a bench trial, an appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder's province for disposition. A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. The trial court's findings have the effect of a verdict and will not be set aside unless clearly erroneous.
3. Judgments: Intent. The presence or absence of malice is a factual issue. However, whether a finding is sufficient to support a judgment is a question of law.
4. Appeal and Error. An appellate court 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 cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process.
5. Sentences: Appeal and Error. A sentence of imprisonment that is within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.
6. Collateral Estoppel: Words and Phrases. "Collateral estoppel" means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties or their privies in any future lawsuit.
7. Collateral Estoppel. There are four conditions that must exist for the doctrine of collateral estoppel to apply: (1) The identical issue was decided in a prior action, (2) there was a judgment on the merits which was final, (3) the party against whom the rule is applied was a party or in privity with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action.
8. Criminal Law: Collateral Estoppel. The doctrine of collateral estoppel may apply in criminal cases.
9. Collateral Estoppel. Nonmutual collateral estoppel involves the invocation of the doctrine by a nonparty to the original action. Mutuality of estoppel is not a requirement for the application of collateral estoppel in civil cases.
10. Aiding and Abetting. The common-law distinction between a principal and an aider and abettor has been abolished in Nebraska. A person who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender.
11. Aiding and Abetting: Words and Phrases. Aiding and abetting requires some participation in a criminal act and must be evidenced by some word, act, or deed. No particular acts are necessary, nor is it necessary that the defendant take physical part in the commission of the crime or that there was an express agreement to commit the crime. Mere encouragement or assistance is sufficient.
12. Criminal Law: Aiding and Abetting: Intent: Liability. When a crime requires the existence of a particular intent, an alleged aider or abettor can be held criminally liable as a principal if it is shown that the aider knew that the perpetrator of the act possessed the required intent, or that the aider himself possessed the required intent.
13. Criminal Law: Aiding and Abetting: Convictions. An aider and abettor can be convicted of any crime, even a greater offense than the principal, provided the conviction is supported by the evidence of the facts and the defendant's state of mind.
14. Homicide: Intent. The essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously.
15. Criminal Law: Trial. A trial court sitting without a jury is not required to articulate findings of fact or conclusions of law in criminal cases. Faced with a timely request, a judge sitting as a trier of fact may state in writing the conclusions of fact separately from the conclusions of law.
16. Criminal Law: Trial: Judges: Presumptions. It is presumed in a jury-waived criminal trial that the judge was familiar with and applied the proper rules of law unless it otherwise clearly appears.
17. Homicide: Sentences. An indeterminate sentence cannot be imposed on a person convicted of second degree murder if the offense was committed prior to September 9, 1993.
James R. Mowbray, Mowbray & Walker, P.C., Lincoln, for appellant.
Don Stenberg, Atty. Gen., and Marilyn B. Hutchinson, Lincoln, for appellee.
Phillip Secret, Jr., was charged with first degree murder for his part in the killing of Deron Haynes. Following a bench trial, the district court for Lancaster County adjudged Secret guilty of second degree murder and of the use of a firearm to commit a felony. Haynes was killed by a gunshot wound to the chest when shots were fired by several individuals into the trailer house Haynes was in. Secret's claims of error are based in part on the fact that the charges made against Secret were inconsistent with the charges made or found against other men involved in the shooting. The district court sentenced Secret to not less than 10 years' imprisonment to life on the murder charge and 4 to 6 years' imprisonment on the use of a firearm charge, with the sentences to be served consecutively.
In his appeal to this court, Secret challenges his second degree murder conviction. Secret asserts that, because two other individuals involved in the killing were convicted in their separate trials of second degree murder, that the State was estopped from proceeding with a first degree murder charge against him. Specifically, the principal, JaRon Dean, was convicted of second degree murder. See State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994). Secret further asserts the district court erred in convicting Secret of second degree murder without specifically finding that Dean killed the victim with malice. Finally, Secret challenges the district court's determination that he had aided and abetted Dean in an intentional killing. We affirm Secret's conviction for second degree murder. However, pursuant to State v. Martin, 246 Neb. 896, 524 N.W.2d 58 (1994), we vacate his sentence because it was an indeterminate sentence imposed without statutory authority. This matter is remanded to the district court for resentencing for a determinate sentence as provided by the law.
This case arose initially out of a dispute over a hit-and-run traffic accident on October 21, 1992. The dispute escalated and ultimately ended with the death of Haynes. The facts are set out in State v. Dean, supra, and are only briefly recited here.
The day after the accident, Secret and some of his friends set out to find and confront the other party involved in the hit-and-run accident. The group traced the owner of the car, Haynes, by locating the car at an automobile body shop.
Secret apparently decided not to handle the matter through available legal means, but to proceed on his own. Secret confronted Haynes at the body shop. Haynes responded to the confrontation by going to the trunk of his car and pulling out a small handgun. Secret and his friends retreated and went to Secret's house in order to get a gun. Armed with a 12 gauge shotgun, the group set out a second time with the intent to find and confront Haynes. Secret testified that he armed himself only because he wanted to ask Haynes more questions and he thought the shotgun would prevent Haynes from pulling out his own weapon.
Secret learned that Haynes could be found at a trailer park located near the intersection of 27th Street and Cornhusker Highway in Lincoln. The group located Haynes' trailer, but no one responded to Secret's shouts to come out and talk. After leaving the trailer park, the group went to a McDonald's restaurant, where they saw Haynes with others in the parking lot. One of Secret's friends grabbed the shotgun, and the two of them ran toward Haynes. Haynes sped off in a blue car.
Afterward, Secret and his friends spent several hours playing basketball and discussing the accident and the encounters with Haynes. Secret indicated he wanted to confront Haynes again, and his friends offered to back him up if they were supplied with guns. Secret was able to obtain a .38-caliber semiautomatic pistol, a 12 gauge shotgun, a .22-caliber revolver, and an AK-47 assault rifle. Thus armed, the group drove to the trailer park for the third and fatal encounter with Haynes.
At the trailer, Secret and his friends parked their automobile and distributed the weapons among themselves. Secret was unarmed, but directed the others to surround the trailer as he approached the door. As Secret was peeking in a window on the east side of the trailer, he heard repeated shots from the opposite side. Haynes was inside the trailer and suffered a fatal gunshot wound to the chest as he was in or arising from a chair. The investigation indicated that Dean fired the fatal bullet into the occupied trailer home with the AK-47 assault weapon.
Secret was charged with first degree murder in the death of Haynes. Secret was also charged with the use of a weapon to commit a felony.
Secret was the third individual tried on charges which arose from the same incident at the trailer park. See, State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994); State v....
To continue reading
Request your trial
-
State v. Williams
...cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process. State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994). A criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the fin......
-
State v. Ryan
...and abettor cannot be convicted of a greater offense than a principal. Such is not the law in this state. In State v. Secret, 246 Neb. 1002, 1009-10, 524 N.W.2d 551, 557 (1994), we The common-law distinction between a principal and an aider and abettor has been abolished in Nebraska. State ......
-
State v. Mullin-Coston
...1122, 216 Ill.Dec. 194, (1996) (holding nonmutual collateral estoppel inapplicable to evidentiary ruling by court); State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994), overruled on other grounds by State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998); People v. Allee, 740 P.2d 1, 10 (Co......
-
State v. Burlison
...(1995); State v. Wilson, 247 Neb. 948, 530 N.W.2d 925 (1995); State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995); State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994); State v. Martin, 246 Neb. 896, 524 N.W.2d 58 (1994); State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994); State v. Ladi......