State v. Williams

• Decision Date: 05 May 1995
• Docket Number: No. S-94-542,S-94-542
• Citation: 531 N.W.2d 222,247 Neb. 931
• Parties: STATE of Nebraska, Appellee, v. Ronald E. WILLIAMS, Appellant.
• Court: Nebraska Supreme Court

Page 222

531 N.W.2d 222

247 Neb. 931

STATE of Nebraska, Appellee, v. Ronald E. WILLIAMS, Appellant.

No. S-94-542.

Supreme Court of Nebraska.

May 5, 1995.

Syllabus by the Court

1. Homicide: Intent. Malice is a material element of second degree murder.

2. Postconviction: Appeal and Error. Ordinarily, an appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion.

3. Jurisdiction: Sentences: Appeal and Error. An appellate court is compelled to accept jurisdiction when the sentence entered by the trial court is invalid due to plain error in the proceedings.

4. Appeal and Error. An appellate court always reserves the right to note plain error of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process.

5. Postconviction: Proof: Appeal and Error. A criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous.

6. Postconviction: Proof: Appeal and Error. A criminal defendant in a postconviction proceeding has the burden of alleging and proving that a claimed error is prejudicial.

7. Postconviction: Proof. A defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution.

8. Courts: Judgments: Judicial Notice. When cases are interwoven and interdependent and a controversy has already been considered and determined in a prior proceeding involving one of the parties now before the court, the court has the right to examine its own records and take judicial notice of its own proceedings and judgment in the prior action.

9. Postconviction: Effectiveness of Counsel: Proof. The Nebraska Supreme Court has adopted a two-part test for proving a claim of ineffective assistance of counsel. When a defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, the defendant must make a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.

10. Criminal Law: Trial: Jury Instructions: Proof. In a criminal trial, the court in its instructions must delineate for the jury each material element the State is required to prove beyond a reasonable doubt to convict the defendant of the crime charged.

11. Jury Instructions: Homicide: Intent: Appeal and Error. It is plain error for a jury instruction on second degree murder to omit malice as an element.

12. Criminal Law: Trial: Effectiveness of Counsel: Jury Instructions. The failure of defense counsel in a criminal trial to object to an instruction which omits a material element of the crime charged cannot be considered to be within the wide range of professionally competent assistance.

13. Homicide: Intent. The essential elements of the crime of murder in the second degree are that the killing be done purposely and maliciously.

14. Criminal Law: Jury Instructions. Jury instructions that set forth only the statutory elements of a crime are insufficient when they do not set forth all the essential elements of the crime.

15. Criminal Law: Trial: Judges: Jury Instructions. It is the duty of the trial judge in a criminal case to instruct the jury 16. Jury Instructions: Appeal and Error. An instruction or instructions which by the omission of certain elements have the effect of withdrawing from the jury an essential issue or element in the case are prejudicially erroneous.

on the pertinent law of the case, whether requested to do so or not.

17. Homicide: Intent: Jury Instructions: Appeal and Error. Failure to include the element of malice in the jury instruction on second degree murder constitutes plain error.

18. Criminal Law: Trial: Jury Instructions: Effectiveness of Counsel: Appeal and Error. Reversal for trial error, such as incorrect instructions and ineffective assistance of counsel, implies nothing with respect to the guilt or innocence of a defendant. Rather, it is only a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect.

19. Criminal Law: Trial: New Trial: Appeal and Error. Reversal based upon trial error does not bar a retrial of a criminal defendant.

Ronald E. Williams, pro se.

Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.

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

PER CURIAM.

Ronald E. Williams, through a postconviction relief motion, asked the district court for Douglas County for a new trial in regard to his second degree murder conviction. That court denied Williams' request, and he appealed.

We find that the postconviction trial court erred when it failed to grant Williams postconviction relief.

ASSIGNMENTS OF ERROR

In his brief, Williams, in substance, claims the postconviction court committed four errors. To dispose of this appeal, we need discuss only two of the issues raised by the assigned errors: (1) whether the court at Williams' original trial erred when it failed to include in its instruction to the jury that "malice" is a material element of second degree murder, and (2) whether Williams was denied effective assistance of counsel when his trial counsel did not object to the original trial court's omission in its jury instructions of "malice" as a material element of second degree murder.

FACTS

On October 6, 1986, a jury found Williams guilty of second degree murder and use of a firearm to commit a felony in the April 13, 1986, death of Eric Holmes. Williams was sentenced to 20 years' imprisonment for the second degree murder charge and 3 years' imprisonment on the firearm charge, the sentences to run consecutively. This court detailed the facts surrounding Holmes' death in State v. Williams, 226 Neb. 647, 413 N.W.2d 907 (1987), and held that the State presented sufficient evidence to support the conviction.

On July 12, 1988, Williams, acting pro se, filed a motion to vacate and set aside his conviction for second degree murder because of ineffective assistance of trial counsel. The district court appointed counsel, held an evidentiary hearing, and denied the motion. On appeal, we held that Williams failed to establish a basis for postconviction relief, and we affirmed the judgment of the district court. State v. Williams, 234 Neb. 890, 453 N.W.2d 399 (1990). Thereafter, Williams filed a petition for a writ of habeas corpus in the U.S. District Court for the District of Nebraska, alleging that there was insufficient evidence to support his conviction and that he had had ineffective assistance of counsel. The federal court denied Williams' petition. On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed the trial court's judgment. The appeals court held that the evidence was more than sufficient to support Williams' conviction and that he had failed to establish that the alleged errors by his counsel prejudiced his defense. Williams v. Dahm, 963 F.2d 216 (8th Cir.1992), cert. denied 506 U.S. 891, 113 S.Ct. 260, 121 L.Ed.2d 191. Williams, at his jury trial and on his direct appeal to this court, was represented by the Douglas County public defender's office. In his postconviction relief motion, Williams had appointed counsel. He also had appointed counsel in his federal court proceedings in the Eighth Circuit Court of Appeals. None of Williams' counsel in any of those proceedings brought to any court's attention that the court at Williams' jury trial had failed to instruct the jury that malice is a material element of second degree murder and that to convict Williams, it was necessary for the State to prove beyond a reasonable doubt not only that Williams intentionally caused the death of Holmes without premeditation but that he did so with malice. Malice is that condition of the mind which is manifested by intentionally doing a wrongful act without just cause or excuse. State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994).

On April 4, 1994, Williams filed pro se a second motion for postconviction relief in the district court for Douglas County. Williams alleged that the trial court violated his rights under Neb. Const. art. I, § 3, and the 5th and 14th Amendments to the U.S. Constitution by not including in its jury instructions that malice is an element of second degree murder. Williams also alleged that he received ineffective assistance of counsel in violation of Neb. Const. art. I, § 11, and the Sixth Amendment to the U.S. Constitution because his counsel failed to object to the trial court's omission of malice as an element of second degree murder in its instructions to the jury. Williams requested an evidentiary hearing and moved for appointment of counsel.

The district court denied Williams' request for an evidentiary hearing and overruled his April 4, 1994, motion for postconviction relief. The second postconviction relief court held that Williams procedurally defaulted by not raising the issue of the jury instruction in his direct appeal or in his previous postconviction motion. The district court then proceeded to address the merits of the motion. The court acknowledged that the jury instructions did not include malice as an element of second degree murder. The court, contrary to the holdings of this court, then held that the trial court acted appropriately in omitting malice as an element of second...