State v. Smith

• Decision Date: 16 November 2012
• Docket Number: No. S–10–442.,S–10–442.
• Citation: 284 Neb. 636,822 N.W.2d 401
• Parties: STATE of Nebraska, appellee, v. William E. SMITH, appellant.
• Court: Nebraska Supreme Court

284 Neb. 636
822 N.W.2d 401

STATE of Nebraska, appellee,
v.
William E. SMITH, appellant.

No. S–10–442.

Supreme Court of Nebraska.

Nov. 16, 2012.

[822 N.W.2d 404]

Syllabus by the Court

[284 Neb. 636]1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

2. Jury Instructions: Convictions: Appeal and Error. Before an error in the giving of instructions can be considered as a ground for reversal of a conviction, it must be considered prejudicial to the rights of the defendant.

3. Homicide: Words and Phrases. A sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control.

4. Homicide: Words and Phrases. A sudden quarrel does not necessarily mean an exchange of angry words or an altercation contemporaneous with an unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim.

5. Homicide: Intent. It is not the provocation alone that reduces the grade of the crime, but, rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements necessary to constitute murder are absent.

6. Homicide: Intent. In determining whether a killing constitutes murder or sudden quarrel manslaughter, the question is whether there existed reasonable and adequate provocation to excite one's passion and obscure and disturb one's power of reasoning to the extent that one acted rashly and from passion, without due deliberation and reflection, rather than from judgment. The test is an objective one. Qualities peculiar to the defendant which render him or her particularly excitable, such as intoxication, are not considered.

7. Lesser–Included Offenses: Jury Instructions: Evidence. The rule in a non-homicide case is that a trial court must instruct on a lesser-included offense only if requested to do so and the evidence supports the giving of the lesser-included instruction. However, a court may give a lesser-included instruction over a defendant's objection.

[284 Neb. 637]8. Homicide: Lesser–Included Offenses: Jury Instructions. Where murder is charged, a court is required to

[822 N.W.2d 405]

instruct the jury on all lesser degrees of criminal homicide for which there is proper evidence before the jury, whether requested to do so or not.

9. Trial: Lesser–Included Offenses: Jury Instructions: Case Disapproved. In a nonhomicide case, a trial court has no duty to instruct on lesser-included offenses in the absence of a request for such an instruction; disapproving State v. Al–Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997), and State v. Dixon, 259 Neb. 976, 614 N.W.2d 288 (2000).

10. Criminal Law: Time: Appeal and Error. A new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past.

11. Appeal and Error: Words and Phrases. Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

12. Appeal and Error. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings.

Peter K. Blakeslee, for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

STEPHAN, J.

William E. Smith was convicted by a jury of attempted second degree murder, first degree assault, and use of a weapon to commit a felony. The Nebraska Court of Appeals affirmed the assault and weapon convictions and found that the trial court did not err in failing to give a self-defense instruction. ¹ But it reversed, and remanded for a new trial on the attempted [284 Neb. 638]second degree murder conviction, finding the jury should have been instructed on both attempted second degree murder and attempted sudden quarrel manslaughter.² Both the State and Smith filed petitions for further review, which we granted. Although our reasoning differs in some respects from that of the Court of Appeals, we reach the same conclusion.

I. BACKGROUND 1. Facts

The following facts are taken from the published opinion of the Court of Appeals. Additional facts will be discussed as pertinent to our consideration of the specific issues presented for further review.

On November 12, 2008, a surprise 21st birthday party was thrown for Lorenzo Gaskins. [A] large group of 15 to 20 people—including Tyrone Gaskins, Matthew Weston, Winston Sanniola, Lorenzo, and [LeMarcus Gaskins (Marcus) ]—took a limousine to a “gentlemen's club,” then to the Spigot bar in downtown Lincoln. At the Spigot bar, some of the individuals went inside. While inside the Spigot bar, Tyrone exchanged words with Stacey Gant. Smith, an acquaintance

[822 N.W.2d 406]

of Gant, later approached Tyrone and told him: “ ‘You don't ... disrespect women like that.’ ” Tyrone exited the bar, as did Smith and Gant. Outside of the bar, Tyrone got into an altercation with Smith. Marcus stepped in and punched Smith in the mouth. The birthday group retreated to the limousine and left. Smith left with his friend Carlos Helmstadter in Helmstadter's Cadillac Escalade.

The Escalade followed the limousine from the Spigot bar, located at approximately 17th and O Streets, to Save–Mart, located near North 11th Street and Cornhusker Highway—which according to one witness was a 5– to 10–minute drive. At Save–Mart, Smith got out of the passenger side of the Escalade and started yelling. [S]ome of the individuals [from the birthday group,] including [284 Neb. 639]Marcus, went inside the store. When Marcus learned that Smith wanted to fight him, he went outside to engage in a fight. Some of Marcus' group joined in the fight, at which point Smith was outnumbered. The fight ended when Helmstadter fired two or three gunshots into the air. Smith then took Helmstadter's gun and began firing. One of Smith's shots hit Marcus [as Marcus ran away]. Helmstadter and Smith fled the scene. Marcus suffered life-threatening injuries, including a rib fracture, a punctured lung, a small kidney laceration, and a grade V liver laceration—the most serious survivable liver laceration, which Marcus did survive.

....

The State charged Smith with one count of attempted second degree murder, a Class II felony; one count of first degree assault, a Class III felony; and one count of use of a weapon to commit a felony, a Class III felony.

....

... The jury found Smith guilty of attempted second degree murder, first degree assault, and use of a weapon to commit a felony. Smith was sentenced to 25 to 35 years' imprisonment for attempted second degree murder, 15 to 20 years' imprisonment for first degree assault, and 15 to 20 years' imprisonment for use of a weapon to commit a felony. The sentence for first degree assault was to run concurrently with the sentence for attempted second degree murder. However, the sentence for use of a weapon to commit a felony was to run consecutively to the other sentences.³

2. Court of Appeals

In his appeal from these convictions, Smith argued that our opinion in State v. Jones⁴ should be overruled to the extent it held that manslaughter was always an unintentional crime. He [284 Neb. 640]further argued that because manslaughter can be committed intentionally, the jury should have been instructed that if his intent to kill was a result of a sudden quarrel, he should be convicted of attempted voluntary manslaughter. He also assigned and argued that the jury should have been instructed that he acted in self-defense.

Smith acknowledged in his appeal that his trial counsel did not request instructions on either attempted manslaughter or self-defense. But his new appellate counsel contended the instructions were nevertheless warranted based on two theories: (1) The trial court had a duty to sua sponte instruct on the law applicable to the case and/or (2) his trial counsel provided ineffective

[822 N.W.2d 407]

assistance when he failed to request the instructions.

After this case was briefed but before it was decided by the Court of Appeals, we decided State v. Smith,⁵ an unrelated case involving a different defendant with the same surname. In that case, we overruled Jones⁶ and reaffirmed our holding in State v. Pettit⁷ that “an intentional killing committed without malice upon a ‘sudden quarrel,’ as that term is defined by our jurisprudence, constitutes the offense of manslaughter.” ⁸ The Court of Appeals was thus faced with applying our decision in Smith to this case.

In doing so, the Court of Appeals determined that a self-defense instruction was not warranted by the evidence. It further determined that Smith's trial counsel could not have been deficient in failing to request an instruction on attempted sudden quarrel manslaughter, because at the time of the trial, that crime did not exist in Nebraska. The court reasoned that trial counsel could not have been ineffective “for not anticipating how the courts would rule.” ⁹ But the Court of [284 Neb. 641]Appeals concluded that under our decision in Smith, the trial court had a sua sponte duty to instruct on attempted sudden quarrel manslaughter because it was a lesser-included offense of attempted second degree murder and there was some evidence of a sudden quarrel occurring immediately before the shooting. We granted petitions for further review filed by each party.

II. ASSIGNMENTS OF ERROR

In the State's petition for...