State v. Kistenmacher

436 N.W.2d 168, 231 Neb. 318, 1989 Neb. LEXIS 79
CourtNebraska Supreme Court
DecidedFebruary 24, 1989
Docket87-1050
StatusPublished
Cited by10 cases

This text of 436 N.W.2d 168 (State v. Kistenmacher) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kistenmacher, 436 N.W.2d 168, 231 Neb. 318, 1989 Neb. LEXIS 79 (Neb. 1989).

Opinions

Per Curiam.

A jury found the defendant, Brent D. Kistenmacher, guilty of manslaughter in violation of Neb. Rev. Stat. § 28-305(1) [319]*319(Reissue 1985), and of using a firearm to commit a felony, a violation of Neb. Rev. Stat. § 28-1205(1) (Reissue 1985), in the shooting death of Jason Cuellar. The defendant was subsequently sentenced to not less than 6 V3 nor more than 20 years’ imprisonment on count I, manslaughter, and not less than 3 nor more than 5 years’ imprisonment on count II, the firearm charge, the sentence on count II to run consecutively to the sentence on count I. Defendant appeals, asserting that the trial court erred in (1) granting the State’s motion in limine precluding the defendant from offering psychiatric testimony relevant to a material issue in the case; (2) instructing the jury over the defendant’s objection that the intentional pointing of a loaded firearm at another person, unless legally justified, is ordinarily an unlawful assault; and (3) imposing an excessive sentence.

On April 12, 1987, at approximately 4:30 p.m., the defendant had returned to his apartment after playing in a softball game. A short time later the deceased, Cuellar, and Bill Morast arrived at the defendant’s apartment. Cuellar and Morast remained for about an hour. Also present was Mark Deitering, the defendant’s roommate. Thereafter, all four left the apartment, as Kistenmacher and Deitering had made plans to visit some friends.

The defendant and Deitering returned to their apartment at about 9:15 that evening. No one else was in the apartment at that time. The two went into the defendant’s room and visited until approximately 9:50 p.m., when they began to hear noises coming from another room of the apartment.

The defendant and Deitering did not know anyone else was in the apartment at that time. Unknown to them, Cuellar and Morast had returned. Cuellar and Morast could hear the defendant and Deitering in the apartment, and let themselves in through the unlocked front door. Cuellar and Morast then sat down on the couch, and Cuellar began to throw Hot Tamale candies at the bedroom door of the defendant.

The defendant owned a .22-caliber double-action revolver which had been given to him by his father several months earlier. He kept this revolver in his nightstand drawer. The defendant testified that he kept the weapon loaded, except that [320]*320the chamber directly underneath the hammer and the next forward chamber were kept empty.

After hearing the noises caused by Cuellar’s throwing the candies at the defendant’s door, the defendant and Deitering exited the bedroom and walked down the hall toward the living room. At that point, the defendant thought the noise had been caused by an intruder. As they were approaching the living room, either the defendant or Deitering stated, “Who is it, we’ve got a gun, ” and Cuellar and Morast chuckled a bit.

When the defendant and Deitering reached the end of the hall, they recognized the “intruder” as Morast and Cuellar. At that point, believing that the chamber under the hammer was empty, the defendant raised the gun, pointed it at the deceased, and pulled the trigger. A shot was fired, striking Cuellar in the head. At that time, “everybody started just freaking out,” and the defendant told Deitering to call 911 for an ambulance.

During questioning at the police station, the defendant admitted that he had shot Cuellar and that at the time of the shooting he knew it was Cuellar and not an intruder. When asked why he would point a gun at a friend of his, the defendant stated that his group of friends would play “head games” with each other to “freak everybody out” and would do things such as point guns at people.

Prior to the trial, the defense notified the State that it intended to call Dr. Thomas Radecki, a psychiatrist, as a witness on behalf of the defendant. The testimony of Dr. Radecki was intended to bear on the state of mind of the defendant at the time of the shooting. The testimony was being offered by the defense to negate the prosecution’s claim of reckless conduct on behalf of the defendant. The substance of Dr. Radecki’s testimony is contained in an offer of proof made by defense counsel at trial. He testified that his examination of the defendant revealed that Brent Kistenmacher was a 20-year-old who had become “desensitized to the serious nature of the games he was playing.” This desensitization was brought about by, among other factors, his choice of violent television programs, heavy metal music, and horror-type movies. Dr. Radecki also stated that this “desensitization” theory was widely accepted in his profession. Because of desensitization, [321]*321the defendant could not and did not appreciate the great risk of danger posed by his behavior. Evidence of mental defects (desensitization) was excluded in Zuber v. State, 500 So. 2d 670 (Fla. App. 1986), the court noting, however, that the expert was not asked whether the defects described were such as would adversely affect and diminish defendant’s mental capacity to form specific intent. That omission is not present in this case. Defense counsel argued that this testimony was relevant, as the definition of “recklessly” contained in Neb. Rev. Stat. § 28-109(19) (Reissue 1985) contains a subjective intent requirement, and Dr. Radecki’s testimony would have some bearing on the determination of whether the defendant had the requisite subjective intent. The district court sustained the State’s motion in limine to exclude the proposed testimony.

The defendant’s first assignment of error concerns the exclusion of this expert testimony. Defense counsel asserts that the exclusion of the testimony of Dr. Radecki denied the defendant his constitutional right to present relevant, material evidence in his defense, as guaranteed by the U.S. Supreme Court in Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), and recognized by this court in State v. Ammons, 208 Neb. 797, 305 N.W.2d 808 (1981). Before we can determine whether this right was abridged, it must first be established that this evidence is relevant to the defendant’s defense.

The focus of the prosecution was that the defendant was guilty of manslaughter in violation of § 28-305(1) because the defendant had killed another, without malice, while in the commission of an unlawful act. The underlying unlawful act was assault in the third degree.

Third degree assault is defined in Neb. Rev. Stat. § 28-310 (Reissue 1985). That statute provides in part: “(1) A person commits the offense of assault in the third degree if he: (a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or (b) Threatens another in a menacing manner.” Specifically, it was the State’s position that the defendant acted recklessly. The term “recklessly” is statutorily defined in § 28-109(19). This subsection provides the following:

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State v. Kistenmacher
436 N.W.2d 168 (Nebraska Supreme Court, 1989)

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Bluebook (online)
436 N.W.2d 168, 231 Neb. 318, 1989 Neb. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kistenmacher-neb-1989.