State v. Trice
| Decision Date | 05 July 2013 |
| Docket Number | No. S–12–126,S–12–126 |
| Citation | 835 N.W.2d 667,286 Neb. 183 |
| Parties | State of Nebraska, appellee, v. De'Aris R. Trice, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the District Court for Madison County: James G. Kube, Judge. Reversed and remanded for a new trial.
Patrick P. Carney and Ryan J. Stover, of Carney Law, P.C., for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
[286 Neb. 183]1. Appeal and Error. An appellate court may, at its option, notice plain error.
2. Trial: Appeal and Error. In determining plain error, where the law at the time of trial was settled and clearly contrary to the law at the time of appeal, it is enough that an error be “plain” at the time of appellate consideration.
3. Criminal Law: Time: Appeal and Error. A new criminal rule—one that constitutes a clear break with the past—applies retroactively to all cases pending on direct review or not yet final, and not just to the defendant in the case announcing the new rule.
4. Homicide: Words and Phrases. A “sudden quarrel” is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control. It 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. 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.
6. Criminal Law: Words and Phrases. Generally speaking, a fight between the victim and a third party is not a “sudden quarrel” as to the defendant.
7. 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 the 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.
8. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial if the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.
A jury convicted De'Aris R. Trice of second degree murder. Before submitting the case to the jury, the district court gave the jury a step instruction regarding second degree murder and manslaughter. Although the instruction was correct when it was given,1 our subsequent holding in State v. Smith2 rendered the instruction an incorrect statement of the law. Because Smith applies retroactively to this case, and because there is evidence—though slight—upon which a jury could conclude that the killing was intentional but provoked by a sudden quarrel, and therefore constituted manslaughter, we find plain error. We reverse.
At about 1:40 a.m. on December 26, 2010, police officers responded to a call at a house in Norfolk, Nebraska. A police dispatcher initially reported a possible stabbing, and later upgraded it to an actual stabbing and possible gun involvement. Officers arrived within a few minutes of the call.
The scene was chaotic. There had been an after-hours party at the house. The house was relatively small, there were many people and cars in the street, and people were trying to leave the area. One individual told an officer that a person had been stabbed, but she did not know who did it. That officer jogged up to the house, looking for anybody with a knife or gun, to try and secure the scene. But the officer saw a group of people around a man, later identified as Timothy Warren, lying on the ground, and the officer stopped to render aid. A woman was already trying to help Warren. The officer opened Warren's airway, confirmed that he was still breathing, and took a look at the wound; it was about a 2–inch puncture wound on the right side of his abdomen. The officer radioed for emergency medical assistance.
Other officers arrived. One officer left to get a CPR mask, while the officer who initially stopped to help Warren left to secure the scene. The officer left Warren with the woman who had initially cared for him; she had told the officer that she had training in CPR and was a nursing and medical assistant. So the officer, with another officer, approached the house. From outside the front door, the officers saw an “extremely agitated” male, with “clenched fists, shaking his arms, [who] had blood on him,” and a woman standing in front of him trying to hold him back. The officers entered the house, with one officer “bear hug[ging]” the man, later identified as Rickey Jordan, and attempting to calm him down. Jordan was yelling at two individuals in the house, later identified as Trice and his brother.
The other officer began talking to Trice and his brother. The officer told them to stop and stay where they were; Trice immediately stopped what he was doing, but his brother became angry. Trice attempted to calm his brother down, and the officer asked Trice's brother whether he had stabbed someone. Trice's brother responded incompletely, muttering “something to the effect of ‘with a knife.’ ” The officer later described the statement, not as an admission, but as “something that he —like he didn't complete his thought when he said it.” At that point, Trice's brother calmed down.
The officer then left to help with Jordan, who was still struggling. The officers placed Jordan in handcuffs. Other people at the party told the officers that they had the “wrong guy,” and they released Jordan later that morning. Meanwhile, Trice and his brother had left the party. The paramedics had also arrived and transported Warren to the hospital. There, doctors discovered that the stab wound had caused significant internal damage and that Warren was bleeding heavily into his abdomen. The doctors performed surgery to try and repair the damage, but they were unsuccessful, and Warren died.
The police secured and processed the crime scene that same morning and collected and preserved possible evidence of the crime, including photographs, swabs of blood, and several knives. Each of the knives was a regular kitchen knife with one exception—there was also a decorative knife, later identified as belonging to Trice. During the investigation, the police sent several items to the Nebraska State Patrol crime laboratory to be tested for DNA and to determine if the DNA matched any individuals at the party. Notably, the police sent in Trice's knife, the alleged murder weapon, to be tested for Warren's DNA, but the results were inconclusive. Police also interviewed many people at the party. Eventually, the investigation focused on Trice as a suspect. By that time, he had returned to his hometown of Chicago, Illinois. When he found out that the police were looking for him, he voluntarily turned himself in and returned to Nebraska.
At trial, much of the testimony came from people at the party. That testimony revealed that the people living at the house had been at a club which closed at 1 a.m. After the club closed, they invited people to their house for an after-hours party, and, although the invitation list was initially small, a “few people turned into a lot.”
Stories of exactly what happened at the party varied from witness to witness. The record indicates that at some point, Warren got into a verbal altercation in the living room with Kevin Bardwell. Warren threw a punch at Bardwell, starting a fight between them, and other people got involved. During that fight, someone stabbed Warren. The majority of the people at the party testified that they did not see who stabbed Warren. Several witnesses testified that Trice was at the party and in the living room, but the testimony about what Trice did and where he was during the fight differed. Jordan and another witness, however, testified that they saw Trice stab Warren during the fight.
Testimony also revealed that after Warren had been stabbed, Jordan became enraged. At some point, Trice allegedly cut Jordan on the arm. Jordan grabbed some knives from the kitchen and went after Trice, who locked himself in the bathroom. Jordan was yelling that Trice had stabbed his friend and that he was going to kill Trice. About that time, the police arrived and detained Jordan. Trice and his brother then left the party with his brother's girlfriend and her mother. Testimony indicated that on the ride home, Trice's brother repeatedly asked him if he had done “ ‘it’ ” or “ ‘this.’ ” Trice's brother testified that eventually Trice said, “ ‘Yeah, I—I had to, I had to protect you and me.’ ” His brother's girlfriend testified that Trice said that “he cut somebody, but he didn't kill nobody,” and her mother testified that Trice said, “ ‘Yeah, I stabbed him in the leg, but I did not kill him.’ ”
The court instructed the jury. Notably, the court gave a then-correct step instruction regarding second degree murder and manslaughter. The instruction told the jury that it should find Trice guilty of second degree murder if the State proved beyond a reasonable doubt that he had intentionally, but without premeditation, killed Warren. The instruction then stated that only if the State failed to prove those elements could the jury then consider whether Trice had committed manslaughter (here, based on a sudden quarrel). The jury found Trice guilty of second degree murder. The court sentenced Trice to a term of 40 years...
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