State v. Smith
| Decision Date | 18 November 2011 |
| Docket Number | No. S–09–1107.,S–09–1107. |
| Citation | 806 N.W.2d 383,282 Neb. 720 |
| Parties | STATE of Nebraska, appellee, v. Ronald G. SMITH, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court.
2. Constitutional Law: Due Process. The determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.
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. Criminal Law: Statutes. It is a fundamental principle of statutory construction that penal statutes be strictly construed.
8.
Statutes:
Legislature:
Intent. The principal objective of construing a statute is to determine and give effect to the legislative intent of the enactment.
9. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.
10. Homicide: Intent: Case Overruled. An intentional killing committed without malice upon a sudden quarrel constitutes the offense of manslaughter. To the extent that State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), holds otherwise, it is overruled.
11. Jury Instructions:
Proof:
New Trial
: Appeal and Error. In order to find that a trial court's error in giving an incorrect jury instruction warrants a new trial, it must be shown that a substantial right of the defendant was adversely affected and that the defendant was prejudiced thereby.
James R. Mowbray and Jerry L. Soucie, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.
Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.
On February 13, 2009, Ronald G. Smith was charged by information with one count of murder in the second degree; one count of first degree forgery, which was later amended to second degree forgery; and one count of theft by taking. All three charges related to the death of Terri Harris. After a jury trial, Smith was convicted and sentenced on all three counts. He then filed this timely appeal, assigning error only with respect to his conviction for second degree murder, for which he was sentenced to 40 to 70 years' imprisonment.
Smith and Harris lived together in a single family residence in Syracuse, Nebraska. In November 2008, both were laid off from their jobs at a Syracuse manufacturing company. Both received severance checks in December as a result of the layoffs; Harris' check was for $3,067.51, and Smith's check was for $3,218.97.
Smith cashed his check at a Syracuse bank on December 19, 2008. Smith cashed Harris' check at the drive-through window of the same bank at approximately 10 a.m. on December 23. He was driving Harris' vehicle at the time and told the teller that he needed the money because Harris had broken her leg and was in the hospital. Smith left Syracuse after cashing the check.
From December 23 to 25, 2008, both Harris' adult son and Harris' sister tried unsuccessfully to contact her on her cellular telephone. Finally, on December 25, Harris' sister called Smith on his cellular telephone to ask if he knew where Harris was. Smith told the sister that Harris was having trouble with her cellular telephone, but that he had seen her that morning and that she was fine. Smith also told the sister that he was in St. Louis, Missouri, and that he would be back home the next day.
Harris' sister remained concerned after speaking with Smith, so she called Harris' son and asked him to go to the house and check on Harris. The son went to the house at approximately 5:30 p.m. on December 25, 2008. He discovered Harris' body on the floor of the bedroom. The body was face up, lodged between the bed and the wall, and partially covered with a blanket.
A pillow covered in a dark-blue pillowcase was found on the floor near Harris' head, and strands of her hair and blood were found on the pillowcase and pillow. Investigators did not observe any defensive wounds on Harris' hands or arms and saw no signs that a struggle had occurred in the room. Investigators noticed that the mattress on the bed was shifted about 6 inches to one side, so that the mattress and boxspring did not meet on the side of the bed where Harris' body was found.
After finding his mother's body, Harris' son made several calls to Smith's cellular telephone and left angry messages, informing Smith that the police were looking for him. Smith did not return the calls. On December 27, 2008, a tearful Smith called the 911 emergency dispatch service in Illinois and stated that he had been on a drug and alcohol binge for 2 weeks and thought he had killed someone in Nebraska. When Smith was subsequently arrested by Illinois law enforcement authorities, he was extremely intoxicated; hospital records show he had a blood alcohol content of .435 on the evening of December 27.
Smith was interviewed by Nebraska law enforcement authorities on December 28, 2008, at 2:35 p.m. He was informed of and waived his Miranda rights prior to this interview. The interview was recorded and was played to the jury at trial.
During the interview, Smith stated that after losing his job, he began drinking and using methamphetamine on a regular basis. Smith said that he arrived at the home which he and Harris shared at approximately 1 a.m. on December 22, 2008, after a night of drinking and drug use. Harris was asleep in the bedroom when he arrived, and Smith slept on the couch. When Smith awoke at approximately 5:30 or 6 a.m., he and Harris began arguing in the bedroom. They argued about Smith's drinking and drug use, their recent layoffs, and money. At some point during the argument, Smith pushed Harris from her bed. She hit the floor hard and lay there motionless with her face up. Smith took a pillow from the bed and held it over Harris' face for 1 to 2 minutes. She did not resist. Smith covered Harris with a blanket, kissed her, and left the house in Harris' vehicle. He admitted that he took Harris' severance check, cashed it, and then left the state. Harris' cellular telephone and $15.65 in cash was found in Smith's motel room at the time of his arrest in Illinois. During his interrogation, Smith wrote a note to Harris' family in which he stated:
Two medical experts testified as to the cause of Harris' death. The pathologist who testified for the State had performed the autopsy on Harris and had authored a report stating that Harris' cause of death was “undetermined,” but that nothing in the autopsy was inconsistent with a death caused by smothering. A forensic pathologist testified for Smith. He reviewed photographs of the autopsy, the autopsy report, photographs of the crime scene, and Harris' medical records. He testified that Harris died from natural causes, specifically, heart disease and sleep apnea. He opined that smothering could not have been the cause of Harris' death, because there was no forensic evidence of a struggle prior to her death.
During the jury instruction conference, Smith objected to the trial court's proposed instruction on the elements of second degree murder, and submitted his own. The district court refused to give Smith's requested instruction and instead gave a pattern second degree murder instruction to the jury. The jury was instructed that to convict Smith of murder in the second degree, the State had to prove beyond a reasonable doubt that Smith killed Harris intentionally but without premeditation. The jury was then instructed that if it found the State had proved each element beyond a reasonable doubt, it was its “duty to find [Smith] guilty of the crime of murder in the second degree.” The jury was instructed that it could proceed to consider whether Smith committed manslaughter if it found that the State had failed to prove any one or more of the material elements of second degree murder beyond a reasonable doubt.
Smith was convicted of second degree murder, second degree forgery, and theft by taking. After he was sentenced for each offense, he filed this timely appeal, challenging only his conviction for second degree murder. We granted his petition to bypass.
Smith assigns that the district court (1) erred in failing to give his requested jury instruction on second...
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