State v. Burlison

583 N.W.2d 31, 255 Neb. 190, 1998 Neb. LEXIS 194

• Court: Nebraska Supreme Court
• Decided: August 14, 1998
• Docket: S-96-755
• Status: Published

Opinions

Per Curiam.

Gary L. Burlison appeals from an order of the district court for Dakota County denying his motion for postconviction relief. We granted Burlison’s petition to bypass the Nebraska Court of Appeals and now affirm, although for reasons different from those stated by the district court.

FACTS

In an amended information filed on December 7, 1992, the State charged Burlison with aiding and abetting another to commit the offense of murder in the second degree as defined by Neb. Rev. Stat. § 28-304 (Reissue 1995). Burlison pleaded guilty to the charge under the terms of a plea agreement. After accepting his plea, the district court sentenced Burlison to a term of 25 years’ imprisonment.

On October 19, 1994, Burlison filed a motion for postconviction relief alleging, inter alia, that the State violated his state and federal constitutional rights by failing to include the element of malice in the amended information. Noting that it had overruled a previous motion for postconviction relief filed by Burlison, the district court denied his second motion because there was no showing that the grounds relied upon were unavailable at the time of the first motion. Burlison’s appeal of this order was dismissed by the Court of Appeals on April 21, 1995, because of his failure to file a brief.

On June 7, 1996, Burlison filed a third motion for postconviction relief, again alleging that the State violated his state and federal constitutional rights by failing to “allege the essential element of malice” in the amended information. On July 1, 1996, the district court denied the motion on grounds that it was based upon the same issues raised in the previous two motions which had been denied. Burlison perfected a timely appeal from this order, and we granted his petition to bypass the Court of Appeals.

ASSIGNMENTS OF ERROR

Burlison’s four assignments of error all relate to his contention that his state and federal constitutional rights were denied because the amended information omitted malice as an element of the crime of aiding and abetting second degree murder.

STANDARD OF REVIEW

Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the courts below. State v. Irons, 254 Neb. 18, 574 N.W.2d 144 (1998); State v. Roucka, 253 Neb. 885, 573 N.W.2d 417 (1998).

ANALYSIS

Postconviction Relief

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. See, State v. Bowen, 254 Neb. 863, 580 N.W.2d 555 (1998); State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997). Once a motion for post-conviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed. State v. Bowen, supra; State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994). A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal. State v. Bowen, supra; State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994).

Burlison argues that his prior motions for postconviction relief should not result in a procedural default, because of our reasoning in State v. Hall, 249 Neb. 376, 379-80, 543 N.W.2d 462, 465 (1996), where we held that a person convicted of murder in the second degree based upon his plea of guilty was entitled to postconviction relief because the information did not allege the element of malice, and for that reason “did not sufficiently charge him with a crime.” In State v. Hall, the trial court had denied the defendant’s motion for postconviction relief, reasoning that he “could have brought to the court’s attention the erroneous information either on direct appeal or in the initial postconviction proceeding.” 249 Neb. at 379, 543 N.W.2d at 464. Finding plain error, we reversed the trial court’s decision, reasoning that “[t]o use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless.” Id. at 380, 543 N.W.2d at 465.

The present matter raises substantially similar issues and is procedurally similar to State v. Hall. Accordingly, despite Burlison’s failure to diligently prosecute his appeal from the denial of his prior motion for postconviction relief, we will address the issues raised.

Second Degree Murder

Section 28-304, which has been in its present form since 1979, provides in relevant part: “(1) A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation.” Following the entry of Burlison’s sentence, we decided State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), in which we held that it was plain error to omit the element of malice from a jury instruction defining second degree murder under § 28-304(1). In State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994), we applied State v. Myers in an appeal from a conviction based upon a plea of guilty, holding that the failure to include malice in the amended information to which the plea was entered constituted plain error. Thereafter, in State v. Ryan, 249 Neb. 218, 223, 543 N.W.2d 128, 135 (1996), we applied the holding from State v. Myers to all cases involving a charge of murder in the second degree by holding that “under § 28-304(1), malice is a necessary element of second degree murder.” We have continued to adhere to the rule established in State v. Myers, as articulated in State v. Ryan, in subsequent cases addressing second degree murder in Nebraska. See, e.g., State v. Randall, 249 Neb. 718, 545 N.W.2d 94 (1996); State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996); State v. Hall, 249 Neb. 376, 543 N.W.2d 462 (1996); State v. Barfoot, 248 Neb. 335, 534 N.W.2d 572 (1995); State v. Lowe, 248 Neb. 215, 533 N.W.2d 99 (1995); State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995); State v. Eggers, 247 Neb. 989, 531 N.W.2d 231 (1995); State v. Wilson, 247 Neb. 948, 530 N.W.2d 925 (1995); State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995); State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994); State v. Martin, 246 Neb. 896, 524 N.W.2d 58 (1994); State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994); State v. Ladig, 246 Neb. 542, 519 N.W.2d 561 (1994); State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Blackson, 245 Neb. 833, 515 N.W.2d 773 (1994), overruled on other grounds, State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996); State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994). Thus, according to this line of precedent, malice is an element of second degree murder notwithstanding the fact that § 28-304(1) does not expressly specify it as such.

This rule marked a departure from our prior cases holding that under Nebraska law all crimes are statutory and no act is criminal unless the Legislature has in express terms declared it to be so. See, State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981); State v. Ewert, 194 Neb. 203, 230 N.W.2d 609 (1975); State v. Gallegos, 193 Neb. 651, 228 N.W.2d 615 (1975); State v. Hauck, 190 Neb. 534, 209 N.W.2d 580 (1973); Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946); Behrens v. State, 140 Neb. 671, 1 N.W.2d 289 (1941); Lane v. State, 120 Neb. 302, 232 N.W. 96 (1930); State v. De Wolfe, 67 Neb. 321, 93 N.W. 746 (1903). In other contexts, we have adhered to this line of precedent. See, e.g., State v. Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998); State v. Pattno, 254 Neb. , 579 N.W.2d 503 (1998); State v. Parks, 253 Neb. 939, 573 N.W.2d 453 (1998). We have also observed that there are no common-law crimes in Nebraska, State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989); State v. Douglas, 222 Neb. 833, 388 N.W.2d 801 (1986), and that within constitutional boundaries, the Legislature is empowered to define a crime, State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), overruled on other grounds, State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994).

Moreover, it is a fundamental principle of statutory construction that penal statutes are to be strictly construed. State v. Beethe, 249 Neb. 743, 545 N.W.2d 108 (1996); State v. Brozovsky, 249 Neb. 723, 545 N.W.2d 98 (1996). In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning, and when the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain their meaning. State v. Atkins, 250 Neb. 315, 549 N.W.2d 159 (1996); State v. Wragge, 246 Neb. 864, 524 N.W.2d 54 (1994). Finally, we have repeatedly stated that it is not within the province of the courts to read a meaning into a statute that is not there, nor to read anything direct and plain out of a statute. State v. Atkins, supra; State v. Cox, 247 Neb. 729, 529 N.W.2d 795 (1995).

As noted previously, State v. Hall, 249 Neb. 376, 543 N.W.2d 462 (1996), is factually and procedurally parallel to the issues presented in this case. Burlison’s argument that State v. Hall requires us to reach the same result in his case is based upon the fundamental legal doctrine of stare decisis, under which an appellate court is bound to follow the rule of law established in a prior case with a like state of facts in deciding a case subsequently presented. Specifically,

“The doctrine of stare decisis is grounded on public policy and, as such, is entitled to great weight and must be adhered to, unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so.”

Muller v. Nebraska Methodist Hospital, 160 Neb. 279, 282, 70 N.W.2d 86, 88 (1955), overruled in part, Myers v. Drozda, 180 Neb. 183, 141 N.W.2d 852 (1966).

The decisions of this court which establish legal precedent under the doctrine of stare decisis arise from our statutory authority to review orders entered by the lower courts for “errors appearing on the record.” Neb. Rev. Stat. § 25-1911 (Reissue 1995). When a case requires the interpretation of a statute, we have “an obligation to reach an independent, correct conclusion irrespective of the determination made by the courts below.” (Emphasis supplied.) State v. Irons, 254 Neb. 18, 20, 574 N.W.2d 144, 147 (1998). Accord State v. Roucka, 253 Neb. 885, 573 N.W.2d 417 (1998). Thus, when we perceive that a lower court has erroneously interpreted a statute, we are obligated to correct the error. The duty of this court to ensure that statutes are interpreted correctly is in no way diminished when the error we perceive is our own. While the doctrine of stare decisis forms the bedrock of our common-law jurisprudence, it does not require us to blindly perpetuate a prior interpretation of the law if we conclude that it was clearly incorrect.

Upon further consideration, we determine that our prior decisions interpreting § 28-304(1) to include malice as a necessary element of the crime of second degree murder were clearly erroneous and therefore should be overruled. In keeping with our long-established rules of statutory construction, we conclude that the language of § 28-304(1) should be given its plain and ordinary meaning in light of the Legislature’s removal of the term “malice” from the definition of second degree murder in its 1977 revision of the criminal code. See, State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996) (Gerrard, J., dissenting); State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994) (Wright, J., dissenting). Moreover, we conclude that construction of § 28-304(1) to include only those elements which the Legislature specifically included in its text does not result in constitutional infirmity. We are now persuaded that when read in conjunction with Neb. Rev. Stat. § 28-102(1) (Reissue 1995), which defines the general purpose of the criminal code as “[t]o forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests,” and the provisions of Neb. Rev. Stat. §§ 28-1406 to 28-1413 (Reissue 1995) dealing with justification for use of force, the Legislature’s definition of second degree murder set forth in § 28-304(1) is not unconstitutionally overbroad. See State v. Ryan, supra (Gerrard, J., dissenting). Likewise, we are satisfied that in this context the statutes dealing with justification for use of force do not impose upon a defendant an unconstitutional shifting of the burden of proof, but, rather, a constitutionally permissible allocation of the burden of production, which when met by anything more than a scintilla of evidence requires the State to prove the lack of justification beyond a reasonable doubt. See, id.; State v. Stahl, 240 Neb. 501, 482 N.W.2d 829 (1992). See, also, Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987). Insofar as State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), and subsequent decisions of this court hold that malice is a necessary element of second degree murder as defined by § 28-304(1), they are overruled.

One who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender. Neb. Rev. Stat. § 28-206 (Reissue 1995); State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996). Under our holding today, the only elements of murder in the second degree are those which the Legislature included in § 28-304(1), namely, the causation of death intentionally but without premeditation. Thus, Burlison was not deprived of any state or federal constitutional right by the fact that the amended information to which he entered his plea of guilty made no reference to malice, and he is therefore not entitled to postconviction relief. The judgment of dismissal is affirmed.

Affirmed.

White, C.J., participating on briefs.