State v. White

• Citation: 819 N.W.2d 473,20 Neb.App. 116
• Decision Date: 21 August 2012
• Docket Number: No. A–11–515.,A–11–515.
• Parties: STATE of Nebraska, appellee, v. Darrell E. WHITE, appellant.
• Court: Court of Appeals of Nebraska

20 Neb.App. 116

819 N.W.2d 473

STATE of Nebraska, appellee,

v.Darrell E. WHITE, appellant.

No. A–11–515.

Court of Appeals of Nebraska.

Aug. 21, 2012.

Syllabus by the Court

[20 Neb.App. 116]1. Jury Instructions. Whether jury instructions given by a trial court are correct is a question of law.

2. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

3. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

4. Self–Defense. The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

5. Self–Defense. The use of deadly force shall not be justifiable unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat.

6. Self–Defense. The use of deadly force is not justifiable if the actor provoked the use of force against himself in the same encounter or the actor knows that he can avoid the necessity of using such force with complete safety by retreating.

7. Self–Defense. In the use of deadly force for self-protection, the actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be.

8. Self–Defense. There is no logical basis for requiring one to retreat when attacked in one's home by a cohabitant but not requiring retreat if the attacker is a stranger.

9. Self–Defense. When one is attacked within one's dwelling, the right to defend oneself and the privilege of nonretreat should apply equally, regardless of whether the attacker is a cohabitant or an unlawful entrant.

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

11. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.

12. Constitutional Law: Double Jeopardy: Evidence: Appeal and Error. The Double Jeopardy Clauses of the federal and state Constitutions do not forbid a retrial after an appellate determination of prejudicial error in a criminal trial so long as the sum of all the evidence admitted by the trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, and Mandy M. Gruhlkey for appellant.

Jon Bruning, Attorney General, and James D. Smith for appellee.

INBODY, Chief Judge, and IRWIN and SIEVERS, Judges.

IRWIN, Judge.

I. INTRODUCTION

Darrell E. White appeals his convictions in the district court for Sarpy County, Nebraska, on charges of second degree murder and use of a weapon in the commission of a felony. The charges arose from an incident wherein White stabbed a cohabitant of his apartment, resulting in the cohabitant's death. On appeal, White asserts a variety of errors, including that the court erred in failing to instruct the jury White did not have a duty to retreat if he was not the first aggressor (i.e., that he had a privilege of nonretreat) and that there was insufficient evidence to support the convictions. We find that the district court erred in failing to instruct the jury that White did not have a duty to retreat if he was not the first aggressor, as requested by White. Accordingly, we reverse, and remand for a new trial.

II. BACKGROUND

The events giving rise to this case occurred during the late hours of September 21, 2010. A 911 emergency dispatcher received a telephone call from White, during which White indicated that he had just stabbed his roommate, Todd Berg. White indicated to the 911 dispatcher that he had stabbed Berg in the chest because Berg “came after” him. During a later interview, White indicated that Berg had been living with him for approximately 9 months.

Bellevue police officers were dispatched to the location. Officer James Murray was the first officer to make contact with White at the residence. Officer Murray testified that he took White into custody and placed White in handcuffs.

Inside the residence, officers encountered Berg lying in a reclined position on a couch, with his feet on the footrest. Berg was not moving and had labored breathing, taking “one gasping breath about every 10 to 15 seconds.” Officers were unable to get a response when speaking to Berg and were unable to get any reaction in Berg's eyes, even when shining lights into the eyes. In addition, Berg's pulse was “very light.” Berg ultimately died.

A single knife wound was observed in Berg's chest. Officers located a black butterfly-style knife with blood on the blade, which blood “went all the way up to the handle of the knife.” No firearm was located.

Officers Timothy Flohrschutz and Michael Pilmaier also responded to the scene. Officer Flohrschutz testified that White indicated to the officers that Berg “had tried to stab him, so he stabbed [Berg] in return.” Officer Pilmaier transported White from the scene to the Sarpy County sheriff's office. Officer Pilmaier testified that White made a variety of statements about the events, including that “his roommate was trying to kill him,” that “his roommate was crazy,” and that “he was trying to protect himself” because “Berg was coming after him.” White also indicated to Officer Pilmaier, on more than one occasion, that he had “nothing to do with” what happened to Berg.

At the Sarpy County jail, White was interviewed by Officer Robert Bailey. During that interview, White initially told Officer Bailey that he did not know what had happened to Berg. He explained that he and Berg had been drinking whiskey, that Berg had gone for a walk, and that he did not remember Berg's returning from the walk or how Berg had died. White denied having killed Berg.

Later during the interview, White indicated that he believed he had called the 911 emergency dispatch service because Berg had told him to do so and that he had thought Berg was playing a practical joke on him. White indicated that Berg started gasping for air and that then “he was gone” and there had been nothing that White could do.

Eventually, White indicated that Berg had come after him and that he had stabbed Berg to defend himself. White told Officer Bailey that Berg had come after him “like a freight train” and that he had been threatened by Berg's size and weight. White indicated that he had attempted to stab Berg in the arm, but had missed and struck Berg in the chest. White also indicated that Berg had fallen onto the knife while tackling White. White told Officer Bailey that Berg had acted violently toward White, that Berg had a “look in his eyes,” that Berg had rushed at him, and that he had stabbed Berg out of defense, not aggression.

On November 8, 2010, White was charged by information with second degree murder and use of a weapon in the commission of a felony. Trial was held on March 8 through 11 and 14, 2011. At the conclusion of the trial, the court's proposed jury instructions included an instruction on self-defense. White requested an instruction to the jury that he “was under no duty to retreat from his dwelling” if he was not the first aggressor. The district court concluded that the privilege of nonretreat is applicable only when a defendant acts in self-defense against an unlawful intruder and that the privilege is not applicable in incidents between cohabitants. As such, the court rejected White's requested jury instruction.

The jury returned verdicts of guilty on both charges. After a motion for new trial was overruled, the court sentenced White to consecutive terms of 50 to 70 years' imprisonment on the second degree murder conviction and 10 to 20 years' imprisonment on the use of a weapon conviction. This appeal followed.

III. ASSIGNMENTS OF ERROR

White has assigned a variety of errors on appeal, including a challenge to the State's use of a peremptory challenge during jury selection, an assertion of prosecutorial misconduct, a challenge to the sentence imposed, and an assertion of cumulative error impacting his right to a fair trial. In addition, White challenges the court's denial of his requested jury instruction on the privilege of nonretreat and asserts that there was insufficient evidence to support the convictions. We find that resolution of these last two assertions of error resolves the appeal, and we decline to further address the remaining assertions. See State v. Enriquez–Beltran, 9 Neb.App. 459, 616 N.W.2d 14 (2000) (appellate court is not obligated to engage in analysis which is unnecessary to adjudicate case and controversy before it).

IV. ANALYSIS

1. PrivilegeofNonretreat

White first challenges the district court's refusal to give a requested jury instruction concerning the privilege of nonretreat. White sought to have the jury instructed that he did not have a duty to retreat if he was not the first aggressor. The issue of whether one has a duty to retreat or a privilege of nonretreat when acting in self-defense in the dwelling against another who is a cohabitant is an issue of...