State v. White

• Citation: 543 N.W.2d 725,249 Neb. 381
• Decision Date: 16 February 1996
• Docket Number: No. S-95-342,S-95-342
• Parties: STATE of Nebraska, Appellee, v. Calvin J. WHITE, Appellant.
• Court: Supreme Court of Nebraska

Page 725

543 N.W.2d 725

249 Neb. 381

STATE of Nebraska, Appellee, v. Calvin J. WHITE, Appellant.

No. S-95-342.

Supreme Court of Nebraska.

Feb. 16, 1996.

Syllabus by the Court

1. Jury Instructions: Appeal and Error. 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 a reversal.

2. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict.

3. Self-Defense. To successfully assert the claim of self-defense, one must have both a reasonable and good faith belief in the necessity of using deadly force.

4. Homicide: Intent. Malice, like intent, concerns the state of mind of the slayer.

5. Intent: Words and Phrases. Malice denotes a condition of the mind which is manifested by intentionally doing a wrongful act without just cause or excuse.

6. Homicide: Intent. Second degree murder is distinguishable from first degree murder only in the absence of the requirement of deliberation and premeditation.

7. Self-Defense: Intent: Case Overruled. To the extent State v. Blackson, 245 Neb. 833, 515 N.W.2d 773 (1994), can be read to imply that the rejection of a self-defense claim equated to a finding that the defendant therein acted with malice, it is overruled.

8. Constitutional Law: Due Process: Trial: Juries: Convictions. The provisions of Neb. Const. art. I, § 3, that no person shall be deprived of liberty without due process of law, and Neb. Const. art. I, § 11, that the accused in a criminal prosecution shall have the right to trial by an impartial jury, operate together to require that criminal convictions rest upon a jury determination that a criminal defendant is guilty beyond a reasonable doubt of every element of the crime with which the defendant is charged.

9. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant.

10. Constitutional Law: Convictions: Appeal and Error. Even a constitutional error which was harmless beyond a reasonable doubt does not warrant the reversal of a criminal conviction.

11. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

12. Trial: Juries: Appeal and Error. While trial error can be harmless, structural error, that is, error which vitiates all the jury's factual findings, cannot be harmless.

Appeal from District Court, Fillmore County; Orville L. Coady, Judge. Reversed and remanded for a new trial.

Vicky L. Johnson, Fillmore County Public Defender, for appellant.

Don Stenberg, Attorney General and Barry Waid, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

PER CURIAM.

Having had his convictions for second degree murder, use of a firearm to commit the murder, and theft of an automobile affirmed on direct appeal in State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993) (White I ), the defendant-appellant, Calvin J. White, filed in the district court the subject motion for postconviction relief. He asserted therein that he was denied his rights under both the Constitutions of the United States and of this state in that the convicting jury was not instructed that malice is an essential element of second degree murder and that trial counsel's failure to raise that issue on direct appeal rendered counsel ineffective. The district court overruled the postconviction motion, and White appealed. Because the sentence for the murder was imprisonment for life, the appeal, pursuant to the provisions of Neb.Rev.Stat. § 24-1106(1) (Cum.Supp.1994), was docketed in this court.

Inasmuch as White does not argue any claim of error with respect to the theft conviction, we confine ourselves to a consideration of his second degree murder and related use of a firearm convictions.

JURY INSTRUCTIONS

As the facts of the crime are set forth in White I, they are not repeated here. Suffice it to say that the plaintiff-appellee, State of Nebraska, concedes that no jury instruction specifically advised the jury that malice is an element of second degree murder. However, it urges that the instructions as a whole sufficiently informed the jury of the elements of second degree murder, including the element of malice.

One of the trial court's instructions advised the jury that malice is that condition of the mind shown by "intentionally doing a wrongful act without just cause or excuse"--a "willful or corrupt intention of the mind." It then, in a single step instruction, directed the jury to consider first whether White was guilty of first degree murder. The jury was told that if it determined that White was not guilty of first degree murder, it was then to determine whether White was guilty of second degree murder. In pertinent part, the step instruction further read:

The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict [White] of murder in the first degree are:

1. That [he] did unlawfully kill Patricia Cool;

2. That [he] did so purposely and with deliberate and premeditated malice;

....

5. That [he] did not act in self defense....

....

The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict [White] of the crime of murder in the second degree are:

1. That [he] caused the death....

2. That [he] did so intentionally but without premeditation;

3. That [he] did not act in self defense.

Effect of Step and Criminal Intent Instructions.

It is true, of course, that 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 a reversal. State v. Lowe, 248 Neb. 215, 533 N.W.2d 99 (1995).

The separate criminal intent instruction, which defined the intent referred to in the step instruction as a mental process determinable from White's words, acts, and the facts surrounding his conduct, merely referred the jury to the step instruction to determine if White had the criminal intent required by the step instruction. The fact that malice was included as an element of first degree murder does not overcome the deficiency in defining second degree murder. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict. Schluter v. State, 151 Neb. 284, 37 N.W.2d 396 (1949); Webber v. City of Scottsbluff, 150 Neb. 446, 35 N.W.2d 110 (1948). Under that presumption, the jury would have understood that Rejection of Self-Defense Claim.

once it determined that White was not guilty of first degree murder, it was no longer concerned with the matter of malice.

The State further argues, however, that the jury found the equivalent of malice when it rejected White's self-defense claim.

The jury was instructed that one of the elements of the crime of second degree murder was that White did not act in self-defense. Consequently, by finding him guilty of second degree murder, the jury necessarily rejected White's claim that he acted in self-defense. From that, the State goes on to conclude that the jury's rejection of White's self-defense claim, the only justification or excuse offered at trial, is the same as a finding that White acted with malice. Thus, according to the State, as self-defense and malice are mutually exclusive terms, the absence of one implies the existence of the other.

In support of its theory, the State directs our attention to Carleton v. State, 43 Neb. 373, 61 N.W. 699 (1895), in which the defendant who was convicted of first degree murder complained that the jury instructions would have allowed the jury to convict him of a malicious killing even though the jury found that he had killed in self-defense. The Carleton court stated:

We cannot see how self-defense and malice could combine, nor how, under the instructions, it was possible for the jury to believe they could co-exist. The jury was instructed that in order to make out a case of self-defense the shooting must be for the purpose of self-preservation, and they were also told that in order to be malicious the shooting must have been from an unlawful and unjustifiable motive. We think that these rules are correct; and to say that a shooting is in self-defense and at the same time malicious is a contradiction in terms.

43 Neb. at 407, 61 N.W. at 710. The State argues that the reason the concepts are a "contradiction in terms" is that when a person's actions are guided by fear for oneself, they are not guided by malice.

The State also points for support to State v. Blackson, 245 Neb. 833, 515 N.W.2d 773 (1994). In Blackson, a case where malice was not included as an element in the second degree murder instruction, we affirmed a conviction for second degree murder, resting our decision in part on the fact that the trial court had instructed the jury through a separate instruction as to justification for the use of force by the defendant. But the jury's rejection of White's self-defense claim is not the equivalent of a finding of malice. While it is true that self-defense cannot coexist in a murder case with malice, the converse is not true. The absence of self-defense may coexist with the absence of...