State v. White

543 N.W.2d 725, 249 Neb. 381, 1996 Neb. LEXIS 31

• Court: Nebraska Supreme Court
• Decided: February 16, 1996
• Docket: S-95-342
• Status: Published

Opinions

Per Curiam.

Having had his convictions for second degree murder, use of a firearm to commit the murder, and theft of an automobile affirmed on direct appeal in State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993) (White I), the defendant-appellant, Calvin J. White, filed in the district court the subject motion for postconviction relief. He asserted therein that he was denied his rights under both the Constitutions of the United States and of this state in that the convicting jury was not instructed that malice is an essential element of second degree murder and that trial counsel’s failure to raise that issue on direct appeal rendered counsel ineffective. The district court overruled the postconviction motion, and White appealed. Because the sentence for the murder was imprisonment for life, the appeal, pursuant to the. provisions of Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 1994), was docketed in this court.

Inasmuch as White does not argue any claim of error with respect to the theft conviction, we confine ourselves to a consideration of his second degree murder and related use of a firearm convictions.

JURY INSTRUCTIONS

As the facts of the crime are set forth in White I, they are not repeated here. Suffice it to say that the plaintiff-appellee, State of Nebraska, concedes that no jury instruction specifically advised the jury that malice is an element of second degree murder. However, it urges that the instructions as a whole sufficiently informed the jury of the elements of second degree murder, including the element of malice.

One of the trial court’s instructions advised the jury that malice is that condition of the mind shown by “intentionally doing a wrongful act without just cause or excuse” — a “willful or corrupt intention of the mind.” It then, in a single step instruction, directed the jury to consider first whether White was guilty of first degree murder. The jury was told that if it determined that White was not guilty of first degree murder, it was then to determine whether White was guilty of second degree murder. In pertinent part, the step instruction further read:

The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict [White] of murder in the first degree are:

1. That [he] did unlawfully kill Patricia Cool;

2. That [he] did so purposely and with deliberate and premeditated malice;

5. That [he] did not act in self defense ....

The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict [White] of the crime of murder in the second degree are:

1. That [he] caused the death ....

2. That [he] did so intentionally but without premeditation;

3. That [he] did not act in self defense.

Effect of Step and Criminal Intent Instructions.

It is true, of course, that jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal. State v. Lowe, 248 Neb. 215, 533 N.W.2d 99 (1995).

The separate criminal intent instruction, which defined the intent referred to in the step instruction as a mental process determinable from White’s words, acts, and the facts surrounding his conduct, merely referred the jury to the step instruction to determine if White had the criminal intent required by the step instruction. The fact that malice was included as an element of first degree murder does not overcome the deficiency in defining second degree murder. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict. Schluter v. State, 151 Neb. 284, 37 N.W.2d 396 (1949); Webber v. City of Scottsbluff, 150 Neb. 446, 35 N.W.2d 110 (1948). Under that presumption, the jury would have understood that once it determined that White was not guilty of first degree murder, it was no longer concerned with the matter of malice.

Rejection of Self-Defense Claim.

The State further argues, however, that the jury found the equivalent of malice when it rejected White’s self-defense claim.

The jury was instructed that one of the elements of the crime of second degree murder was that White did not act in self-defense. Consequently, by finding him guilty of second degree murder, the jury necessarily rejected White’s claim that he acted in self-defense. From that, the State goes on to conclude that the jury’s rejection of White’s self-defense claim, the only justification or excuse offered at trial, is the same as a finding that White acted with malice. Thus, according to the State, as self-defense and malice are mutually exclusive terms, the absence of one implies the existence of the other.

In support of its theory, the State directs our attention to Carleton v. State, 43 Neb. 373, 61 N.W. 699 (1895), in which the defendant who was convicted of first degree murder complained that the jury instructions would have allowed the jury to convict him of a malicious killing even though the jury found that he had killed in self-defense. The Carleton court stated:

We cannot see how self-defense and malice could combine, nor how, under the instructions, it was possible for the jury to believe they could co-exist. The jury was instructed that in order to make out a case of self-defense the shooting must be for the purpose of self-preservation, and they were also told that in order to be malicious the shooting must have been from an unlawful and unjustifiable motive. We think that these rules are correct; and to say that a shooting is in self-defense and at the same time malicious is a contradiction in terms.

43 Neb. at 407, 61 N.W. at 710. The State argues that the reason the concepts are a “contradiction in terms” is that when a person’s actions are guided by fear for oneself, they are not guided by malice.

The State also points for support to State v. Blackson, 245 Neb. 833, 515 N.W.2d 773 (1994). In Blackson, a case where malice was not included as an element in the second degree murder instmction, we affirmed a conviction for second degree murder, resting our decision in part on the fact that the trial court had instructed the jury through a separate instruction as to justification for the use of force by the defendant. But the jury’s rejection of White’s self-defense claim is not the equivalent of a finding of malice. While it is true that self-defense cannot coexist in a murder case with malice, the converse is not tme. The absence of self-defense may coexist with the absence of malice. This is so because in order to successfully assert the claim of self-defense, one must have both a reasonable and good faith belief in the necessity of using deadly force. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

It is important to remember that malice, like intent, concerns the state of mind of the slayer. Id. It denotes a condition of the mind which is manifested by intentionally doing a wrongful act without just cause or excuse. State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983). Since one who acts in self-defense does so with a protective intent rather than with a criminal intent devoid of justification or excuse, such person does not act with malice and cannot be convicted of second degree murder.

We have acknowledged in our prior holdings, beginning with Carleton, supra, that self-defense can negate malice. See, State v. Samuels, 205 Neb. 585, 289 N.W.2d 183 (1980); State v. Kimbrough, 173 Neb. 873, 115 N.W.2d 422 (1962). In Carleton, the defendant sought to introduce evidence concerning the temper and disposition of the victim in order to support his claim of self-defense. The court stated that in a homicide case, after the defendant has introduced evidence tending to show self-defense, evidence of the ferocity or violent disposition of the victim is admissible for the purpose of showing either “ ‘that the defendant was acting in terror, and hence incapable of that specific malice necessary to constitute murder in the first degree; or . . . that he was in such apparent extremity as to make out a case of self-defense; or . . . that the deceased’s purpose in encountering the defendant was deadly.’ ” Carleton v. State, 43 Neb. 373, 397, 61 N.W. 699, 707 (1895).

Although Carleton and its progeny speak in terms of negating the malice necessary for a conviction of first degree murder, the statement is equally applicable to second degree murder. Second degree murder is distinguishable from first degree murder only in the absence of the requirement of deliberation and premeditation. State v. Payne, 205 Neb. 522, 289 N.W.2d 173 (1980). Both offenses require the State to prove that the defendant acted with malice.

Thus, to the extent Blackson, supra, can be read to imply that the rejection of a self-defense claim equated to a finding that the defendant therein acted with malice, it is overruled.

The White I jury was instructed that White did not act in self-defense if the State proved beyond a reasonable doubt that he had not “reasonably believed that his use of deadly force was immediately necessary to protect him against death or serious bodily harm.” Because the instruction thereby embodied the concepts of “reasonableness” and “good faith belief” in the single phrase “reasonably believed,” the jury could reject White’s self-defense claim on the ground that while unreasonable, he did in fact believe in the necessity of using deadly force. The existence of such unreasonable but actual, or good faith, belief would negate the existence of malice. Thus, it becomes clear that the jury’s negative finding as to self-defense in this case is not the equivalent of a finding that White acted with the requisite malice.

In sum, contrary to the view of the State, the instructions as a whole failed to adequately convey to the jury that malice was a material element of second degree murder.

NONHARMLESS ERROR

In claiming that because of the trial court’s error in instructing the jury, he is entitled to a new trial on his second degree murder and use of a firearm convictions, White invokes provisions of both the federal Constitution and the Constitution of this state. Because the analysis which follows establishes that White is entitled to a new trial on the aforesaid convictions under the Constitution of Nebraska, we do not reach the question as to whether such is also the case under the federal Constitution.

While in making our analysis of White’s rights under the Nebraska Constitution, we cite to U.S. Supreme Court and Nebraska cases which rely on U.S. Supreme Court and other federal cases, we do so only for the purpose of guidance in interpreting our own Constitution, not because we consider any U.S. Supreme Court or other federal case to compel the result we reach.

Neb. Const, art. I, § 3, provides that no person shall be deprived of liberty “without due process of law,” and Neb. Const, art. I, § 11, provides that the accused in a criminal prosecution shall have the right to “trial by an impartial jury.” These provisions require that criminal convictions rest upon a jury determination that a criminal defendant is guilty beyond a reasonable doubt of every element of the crime with which the defendant is charged. See, Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (interpreting similar provisions of U.S. Constitution); State v. Ryan, ante p. 218, 543 N.W.2d 128 (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. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995), cert. denied _U.S._, 116 S. Ct. 563, 133 L. Ed. 2d 488.

We have said that in a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant. State v. Salamon, 241 Neb. 878, 491 N.W.2d 690 (1992); State v. Cox, 231 Neb. 495, 437 N.W.2d 134 (1989). And we have held that even a constitutional error which was harmless beyond a reasonable doubt does not warrant the reversal of a criminal conviction. See State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992).

We have also recognized, however, that harmless error review looks to the basis on which the jury actually rested its verdict. Thus, the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).

In considering the matter of harmless error in the context of the due process and jury trial requirements of the federal Constitution, the U.S. Supreme Court, in Sullivan, supra, distinguished between trial error, which can be harmless, and structural error, that is, error which vitiates all the jury’s factual findings, which cannot be harmless, and concluded that the giving of a constitutionally deficient reasonable doubt instruction constituted nonharmless structural error. In explaining why this is so, the Sullivan Court wrote:

Once the proper role of an appellate court engaged in the [Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967),] inquiry is understood, the illogic of harmless-error review in the present case becomes evident. Since . . . there has been no jury verdict within the meaning of the Sixth Amendment, the entire premise of Chapman review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt — not that the jury’s actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough.

(Emphasis in original.) 508 U.S. at 280.

We conclude that where the jury has not been instructed as to a material element of a crime, there is no verdict within the meaning of Neb. Const, art. I, § 11. Consequently, there is here no object on which a harmless error analysis can operate. The most that an appellate court could say would be that a jury would surely have found White guilty beyond a reasonable doubt, not that the jury’s actual finding of guilt beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough; Neb. Const, art. I, §§ 3 and 11, require more than appellate speculation about a hypothetical jury’s action, or directed verdicts for the State would be sustainable on appeal. There must be an actual jury finding of guilt.

CONCLUSION

The foregoing makes it unnecessary for us to determine whether trial counsel’s failure to have questioned the second degree murder instruction rendered him ineffective. Consistent with our prior holdings that the failure to instruct a jury that malice is an element of second degree murder requires the granting of postconviction relief, State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995), and State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995), cert. denied _U.S. _, 116 S. Ct. 563, 133 L. Ed. 2d 488, we reverse the judgment of the district court and remand the cause for a new trial on the second degree murder and use of a firearm charges in accordance with this opinion.

Reversed and remanded for a new trial.