State v. Wilson

• Decision Date: 05 May 1995
• Docket Number: No. S-94-877,S-94-877
• Citation: 247 Neb. 948,530 N.W.2d 925
• Parties: STATE of Nebraska, Appellee, v. Thomas A. WILSON, Appellant.
• Court: Nebraska Supreme Court

Page 925

530 N.W.2d 925

247 Neb. 948

STATE of Nebraska, Appellee, v. Thomas A. WILSON, Appellant.

No. S-94-877.

Supreme Court of Nebraska.

May 5, 1995.

Syllabus by the Court

1. 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.

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

3. Criminal Law: Trial: Effectiveness of Counsel: Jury Instructions. Counsel's failure to object to the trial court's omission in an instruction of an essential element of a crime charged falls below an objective standard of reasonableness and renders the results of the trial both unreliable and fundamentally unfair, thereby substantively prejudicing a defendant's rights.

Thomas A. Wilson, pro se.

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

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

WHITE, Chief Justice.

In 1986, a jury convicted Thomas A. Wilson of second degree murder and of use of a firearm in the commission of a felony. He was sentenced to 35 years' imprisonment for the second degree murder conviction and 6 to 10 years' imprisonment for the use of a firearm conviction, the terms to run consecutively. We affirmed his convictions and sentences in State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).

In May 1994, Wilson filed his second petition for postconviction relief in Douglas County District Court, contending that (1) the trial court at his original trial had erred when it failed to include malice as an essential element of second degree murder in its jury instructions, and (2) he was denied effective assistance of counsel when his trial counsel failed to object to the trial court's omission of malice as an essential element of second degree murder in its jury instructions. In considering Wilson's second petition, the district court refused to apply our mandates, concluding, sua sponte, that malice is not an element of second degree murder. The district court therefore denied Wilson's request for postconviction relief, and he appealed.

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. State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995); State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994). Recently, in Williams, we addressed the very same issues Wilson raises. In Williams, also a case involving a defendant's second petition for postconviction relief, we held that "[f]ailure to include the element of malice in the jury instruction on second degree murder constitutes plain error." Id. at 940, 531 N.W.2d at 229. See, State v. Martin, 246 Neb. 896, 524 N.W.2d 58 (1994); State v. Ladig, 246 Neb. 542, 519 N.W.2d 561 (1994); State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994); State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994); State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994). We therefore granted Williams' postconviction relief motion and remanded his case for a new trial.

In addition, we held that Williams was denied effective assistance of counsel when his trial counsel failed to object to the trial court's omission of malice as an essential element of second degree murder in its jury instructions. Williams, supra. Counsel's failure to object to the trial court's omission in an instruction of an essential element of a crime charged falls below an objective standard of reasonableness and renders the results of the trial both unreliable and fundamentally unfair, thereby substantively prejudicing a defendant's rights. Id. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As a result, Wilson is entitled to a reversal of his murder conviction and a new trial.

Furthermore, because Wilson's use of a firearm conviction was predicated on his conviction of an underlying felony, the use of a firearm conviction also must be reversed. See Williams, supra.

The district court's order which denied Wilson's second petition for postconviction relief is reversed, and the cause is remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

WRIGHT, Justice, dissenting.

I respectfully dissent from the majority opinion for the reasons given in State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994) (Wright, J., dissenting), and State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995) (Wright, J., dissenting). Both Williams and the case at bar involved second motions for postconviction relief, and this court has granted relief on grounds of plain error because the jury instructions did not include malice as an essential element of second degree murder.

In Williams, the court held that the defendant was denied effective assistance of cou...