State v. Al-Zubaidy

• Decision Date: 21 November 1997
• Docket Number: A,AL-ZUBAID,No. S-96-012,S-96-012
• Citation: 253 Neb. 357,570 N.W.2d 713
• Parties: STATE of Nebraska, Appellee, v. Kamil H.ppellant.
• Court: Nebraska Supreme Court

Page 713

570 N.W.2d 713

253 Neb. 357

STATE of Nebraska, Appellee, v. Kamil H. AL-ZUBAIDY, Appellant.

No. S-96-012.

Supreme Court of Nebraska.

Nov. 21, 1997.

Syllabus by the Court

1. Jury Instructions: Appeal and Error. A party who does not request a desired jury instruction cannot complain on appeal about incomplete instructions.

2. Criminal Law: Trial: Judges: Jury Instructions: Appeal and Error. It is the duty of the trial judge in a criminal case to instruct the jury on the pertinent law of the case, whether requested to do so or not, and an instruction or instructions which by the omission of certain elements has the effect of withdrawing from the jury an essential issue or element in the case is prejudicially erroneous.

3. Lesser-Included Offenses: Jury Instructions: Evidence. A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.

4. Homicide: Lesser-Included Offenses. Attempted second degree murder is a lesser-included offense of attempted first degree murder.

Alan G. Stoler, Omaha, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, and STEPHAN, JJ.

PER CURIAM.

We granted appellant, Kamil H. Al-Zubaidy, a petition for further review of the affirmance of his conviction for attempted first degree murder by the Nebraska Court of Appeals. The Court of Appeals found that although attempted second degree murder is a lesser-included offense of attempted first degree murder, the evidence presented in appellant's trial did not merit such an instruction. See State v. Al-Zubaidy, 5 Neb.App. 327, 559 N.W.2d 774 (1997). We agree with the Court of Appeals that attempted second degree murder is a lesser-included offense of attempted first degree murder, but disagree with the Court of Appeals as to whether the evidence presented merited an instruction on attempted second degree murder. We, therefore, reverse, and remand for a new trial.

FACTUAL BACKGROUND

On December 9, 1994, appellant's wife, Anita Al-Zubaidy, informed appellant that she was leaving him, and took the couple's infant son with her to the home of Ann Brown, a friend of appellant's wife. That evening, appellant attempted to call the Brown residence to talk to his wife but was not allowed to speak with her. Eventually appellant went to the Brown residence to talk to his wife, but appellant's wife denied him entry into the home.

James Fritts testified that on the evening of December 10, 1994, appellant came to his house looking for appellant's wife. He told appellant he had not seen her but agreed to call the Brown residence to attempt to locate her. Fritts called the house and asked for appellant's wife, who proceeded to tell him she did not wish to talk to her husband. Fritts then hung up. Appellant then dialed a number on the telephone, but when he did not get an answer, he began crying. Fritts testified that appellant stated "he knew Fritts testified he called the Brown home to warn Brown that appellant had just left and was threatening her life. Appellant's wife testified that her brother called informing her that the appellant was at her parents' home and wished to talk to her. She testified she told her brother she wanted a divorce from appellant and did not want to talk to him. She stated appellant got on the line so she hung up because he sounded "very angry."

                where Brown worked and Monday he was going to kill her."   Appellant then left Fritts' home
                

Appellant's wife testified that at about 10:30 that evening, appellant showed up at the Brown residence and Brown called the police. Appellant's wife testified she heard Brown "screaming into the phone, oh my God, he's coming through the back door and he's got a knife."

Appellant's wife testified she saw appellant stab Brown in the chest, shoulder, and wrist. When Brown's 18-year-old daughter, Seana, tried to pull appellant off Brown, the appellant stabbed her in the shoulder. Appellant's wife testified that at that point she saw Brown's 16-year-old son, Tierney, come from the basement and tackle appellant, holding him on the ground. A friend of Tierney's, Dan Wilson, grabbed a towel and wrested the knife from appellant by the blade. Once the knife was taken from him, appellant fled the residence while Tierney went to check on his mother. Appellant's wife's testimony as to these events was corroborated by testimony from Brown, Seana, Tierney, and Wilson.

Appellant testified he never intended to kill Brown and denied making any such threat to do so to Fritts. He testified that he had wanted to talk to Fritts that evening to ask him to stop spending so much time with his wife because he feared Fritts and his wife were having an affair. He asserted he only went to the Brown residence to deliver some of his infant's belongings to his wife.

Appellant testified he went to the front door of the Brown residence, but it was locked, so he left the belongings there and went around to the back door. When he knocked on the locked back door, he stated "a guy came from the basement," opened the door, and started yelling "here he is, here he is." Appellant testified Brown began yelling "come here and kill him, come here and kill him" and then hit him in the face with the telephone. Appellant claimed a group then came from the basement and attacked him, and that one of the males in the group stabbed him in the shoulder.

Appellant testified he grabbed a butcher knife from a kitchen table and used it to ward off his attackers as he tried to exit through the back door. He next stated that Brown grabbed him and prevented him from fleeing the house. He testified he cut her wrist in order to free himself. When Brown would not let go, he began to stab her. He stated that Seana grabbed him around the head with a pillow so he could not see and that he then stabbed Seana. He finally stated he fled through the back door and left in his car.

Appellant was charged with attempted first degree murder of Brown, use of a knife or other deadly weapon to commit attempted first degree murder against Brown, intentionally and knowingly causing bodily injury to Seana with a dangerous instrument, and use of a knife or other deadly weapon to commit the felony offense of assault in the second degree.

Following the close of testimony, a conference was held regarding jury instructions. At that conference, the following dialog occurred between defense counsel and the court:

[Defense counsel]: Based on his testimony, I'm sure that he wants me to ask for a self-defense instruction.

THE COURT: Now, am I correct in my opinion that we don't need to do any lesser included offenses?

[Defense counsel]: At least on the criminal attempt. I think the Supreme Court's made it clear that there are no lesser included offenses whenever the charge is criminal attempt.

The jury returned verdicts of guilty on all four counts: attempted first degree murder, second degree assault, and two counts of use

of a weapon to commit a felony. The court sentenced[253 Neb. 361] appellant to serve between 54 and 85 years' imprisonment, and such conviction was upheld by the Court of Appeals. See State v. Al-Zubaidy, 5 Neb.App. 327, 559 N.W.2d 774 (1997).

ASSIGNMENTS OF ERROR

On appeal, appellant claims the Court of Appeals correctly determined that attempted second degree murder is a lesser-included offense of attempted first degree murder; however, he asserts the court erred in concluding that an instruction on attempted second degree murder was not warranted based on the evidence adduced at trial.

STANDARD OF REVIEW

"A party who does not request a desired jury instruction cannot complain on appeal about incomplete instructions." State v. Myers, 244 Neb. 905, 910, 510 N.W.2d 58, 64 (1994). It is the duty of the trial judge in a criminal case to instruct the jury on the pertinent law of the case, whether requested to do so or not, and 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. See, e.g., State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997); State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995); State v. Myers, supra; State v. McDowell, 246 Neb. 692, 522 N.W.2d 738 (1994); State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994).

ANALYSIS

Appellant assigns two errors: (1) The Court of Appeals should have remanded the cause to the district court for a new trial for failure to instruct the jury on the lesser-included offense of attempted second degree murder, and (2) there was evidence presented which required an instruction on the lesser-included offense of attempted second degree murder.

HISTORY OF LESSER-INCLUDED OFFENSES IN NEBRASKA

Over the last 15 years, this court has utilized two approaches to determine the appropriateness of a lesser-included offense instruction. The cognate-evidence approach looks to the elements of the crime as defined in the statute and the evidence adduced at trial. State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (1990). In State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993), Garza was overruled as far as the cognate-evidence approach was concerned, and this court held that to be a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time committing the lesser. This is the first step of State v. Williams, supra. The second step required that the evidence produce a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser...