Petition for Writ of Certiorari — Nebraska v. Williams

iJ

In The

Supreme Court of the United States

October Term, 1995

*

STATE OF NEBRASKA

RONALD E. WILLIAMS

Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Nebraska

®

PETITION FOR WRIT OF CERTIORARI

Submitted by:

DON STENBERG, #14023

Attorney General

|. Kirk Brown, #10456

( ounsel of Record

Assistant Attorney General

P.O. Box 98920

Lincoln, Nebraska 68509-892(

fel: (402) 471-2682

QUESTIONS PRESENTED FOR REVIEW

[he Nebraska Supreme Court has ruled that every

second degree murderer convicted in Nebraska since

1979, including those who pleaded guilty, must be retried

(approximately 130 murderers). The following questions

therefore, are of enormous importance to the people of

Whether the Guarantee Clause of the federal c:

titu ts the citizens of

4

—

—

~

o

from the creation of state law by individuals not duly

elected by the people of that state

) Whether a criminal defendant’s Sixth Amend

ment right to counsel has been abridged when the record

affirmatively demonstrates that the now challenged

actions of that defendant’s trial counsel were (1) in con-

A ith

formitv with a century of state law, (2) in conformity wit

the statutes under which the alleged crime was pros

ecuted, and (3) in conformity with the uniform practice of

trial counsel’s peers in the practice of criminal law within

’ |

that jurisdiction at that time

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW

TABLE OF COIN TRIES io 6 cee es ur ve ae . ob

TABLE OF AUTHORITIES CITED.... ees 5

OPINIONS BELOW .............. ore

STATEMENT OF JURISDICTION..... . ue

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS APPLICABLE ...:.s40¢¢0¢.00080 a, 2

Question |] 2

Question 2.... na Se 2

STATEMENT OF THE CASE : 3

QUESTION 1 . ee }

aN The statute... andi Sete ie 3

B The offense....... Bhar SP eee 5

lgnoring the legislative act and the creation

of a common law crime............ : 4

D. Williams’ collateral litigation ....... neha 5

E. Williams obtains relief................. . 6

8.87 6 ee Rr re Pe ; . 6

REASONS FOR GRANTING THE WRIT ........... 7

QUESTION 1: WHETHER THE GUARANTEE

CLAUSE OF THE FEDERAL CONSTITUTION

PROTECTS THE CITIZENS OF THE STATE OF

NEBRASKA FROM THE CREATION OF LAWS By

A BODY NOT DULY ELECTED BY THE PEOPLE

OF TPSAL SIALE «ss cdeveuséveneee eee 7

11]

TABLE OF CONTENTS Continu

Introduction

l. NEBRASKA’S INTENDED SYSTEM OF «

ERNMENT

ll. THE GUARANTEE CLAUS!

\ The clause

B. The guarantee

QUESTION 2: WHETHER A CRIMINAL DEFEN

DANT’S SIXTH AMENDMENT RIGHT TO COUN

SEL HAS BEEN ABRIDGED WHEN THE RECORD

AFFIRMATIVELY DEMONSTRATES THAT THI]

NOW CHALLENGED ACTIONS OF THAT

DEFENDANT’S TRIAL COUNSEL WERE (1) IN

CONFORMITY WITH A CENTURY OF STATI

LAW, (2) IN CONFORMITY WITH THE STATUTES

UNDER WHICH THE ALLEGED CRIME WAS

PROSECUTED, AND (3) IN CONFORMITY WITH

THE UNIFORM PRACTICE OF TRIAL COUN

SEL’S PEERS IN THE PRACTICE OF CRIMINAI

LAW WITHIN THAT JURISDICTION .

Introduction...

1. WILLIAMS WAS DECIDED UNDER A FED

ERAL CONSTITUTIONAL STANDARD

[] THE STATE COURT’S STRICKLAND ANAI

YSIS .

A [he majority opinion’s line of cases

B. Contrary authority from the same court

C Inetfective counsel?

CONCLUSION

OF AUTHORITIES CITED

364, 112 N.W. 585

Cordson v. State, 77 Neb. 416, 109 N.W. 764 (1906)

Duncan v. McCall, 139 U.S. 449, 11 S. Ct. 573

(1891)

Harris v. Shanahan, 387 P.2d 771 (Kan. 1963)

In re Interrogatories Propounded By Senate, et

536 P.2d 308 (Colo. 1975)

234, 125 N.W. 594 (1910)

Kinnan v. State, 86 Neb

nar

Horan, 556 P.2d 1217

U.S. 966 (1977)

People of City of Thornton \

(Colo. 1976), cert. denied, 43]

State of Nebraska v. Ronald E. Williams, 247 Neb

131, 531 N.W.2d 222 (May 5, 1995) a vf

State v. Bowen, 244 Neb. 204 505 N.W.2d 682

1993)

State v. Brian, 84 Neb. 30, 120 N.W. 916 (1909)

3rown, 213 Neb. 68, 327 N.W.2d 107 (1982)

State v. Clermont, 204 Neb. 611, 284 N.W.2d 412

ag) RRR Maen ese Bric AP te taaP A facta Rng se see

State v. De Wolfe, 67 Neb. 321, 93 N.W. 746 (1903) .

State v. Douglas, 222 Neb. 833, 388 N.W.2d 801

DR prea etal tc eg lel int Bens! HPS Ai yA Din 6

State v. Hardin, 212 Neb. 774, 326 N.W.2d 38

Se ells alae ea eae) Oe eke

State v. Lehtola, 198 N.W.2d 354 (Wis. 1972)

State v. Myers, 244 Neb. 905, 510 N.W.2d 58

(1994)

Tes2)

at

ABLE OF AUTHORITIES CITED Continued

)

Page

tt Pettit 3 Neb. 436, 445 N.W.2d 890 (1989) ..9. 21

State v. Robinson, 218 Neb. 156, 352 N.W.2d 879

(1984) 16

tate v. Rowe, 214 Neb. 685. 335 N.W 2d 309 (1983) Q

tate Samuels, 205 Neb. 585, 289 N.W.2d 18

LOR! 18

tate Scl f 4 Neb. 144, 449 N.W.2d 762

LORY

state v. Schencklotl Net 144 313 N.W.2d 438

19S] )

{ if Sim a ) Nie ) He 1 NX W 2d 255 (19YA j 19

state v. Vosler, 216 Neb. 461, 345 N.W.2d 806

O84) LY

f t¢ Wi lian d 0 Ne b ( $7 4] } N VU 2 1 Yi 7

| 187 ) 4 40)

state v. Williams, 234 Neb. 890, 453 N.W.2, 399

(1990) 5, 19, 20

Strickland v. Washington, 466 U.S. 668

(1984) 6, 15, 16, 17, 20, 21

[yson v. Washington County, 78 Neb. 211, 110

N.W. 634 (1907)

VanSickle v. Shanahan, 511 P.2d 223 (1973) 13

Williams v. Dahm, 963 F.2d 216 (8th Cir. 1992),

cert. denied, U.S , 4139 S. Ct. 260, 121 7

Ed. 2d 191 5, 19

V1

TABLE OF AUTHORITIES CITED - Continued

CONSTITUTIONAL PROVISIONS

The Constitution of the United States, Article IV,

en nN re ee uiahanl glare ae

Constitution of the State of Nebraska, Article II,

Section i...... Se 2, 9,

Constitution of the State of Nebraska, Article III,

Section 1....

Neb. Rev. Stat. § 28-304 (1989)..............2

Neb. Rev. Stat. & 28-402 (1974)

Neb. Rev. Stat. § 29-3001 (1989)

OTHER AUTHORITIES

Deborah Jones Merritt, The Guarantee Clause and

State Autonomy: Federalism For a Third Cen-

tury, 88 Colum. L. Rev. 1, 23 (1988)...........

Thomas A. Smith, The Rule of Law and the States:

A New Interpretation of the Guarantee Clause,

93 Yale L.J. 561 (1984).......0..0.00000000..

[homas C. Berg, The Guarantee of Republican

Government: Proposals For Judicial Review, 54

U. Chi. L. Rev. 208, 235 (1987)

ww

Page

.2, 10

11, 14

2, 9, 10

RE l

19, 21

iat pare! 3

phew Be

.... 12

rhe petitioner respectfully prays that a writ of cer

tiorari issue to review the judgment and opinion of the

Supreme Court of the State of Nebraska

OPINIONS BELOW

[he petitioner seeks a writ of certiorari from the

opinion of the Supreme Court of the State of Nebraska

filed in State of Nebraska v. Ronald E. Williams, 247 Neb.

931, 531 N.W.2d 222 (May 5, 1995). (App. 1). The opinion

below effectively requires that every second degree mur-

derer in Nebraska convicted since 1979 be retried

STATEMENT OF JURISDICTION

(1)

The opinion in question was filed May 5, 1995. (App.

(11)

Rehearing was denied June 1, 1995. (App. 18).

(111)

lhe jurisdiction of this Court to review the judgment

in question is invoked pursuant to 28 U.S.C. § 1257.

eee ere ee

CONSTITUTIONAL AND STATUTORY

PROVISIONS APPLICABLE

Question 1

The United States shall guarantee to every State

in this Union a Republican Form of Govern-

ment.

The Constitution of the United States, Article IV, Section 4.

The powers of the government of this state are

divided into three distinct departments, the leg-

islative, executive and judicial, and no person or

collection of persons being one of these depart-

ments, shall exercise any power properly

belonging to either of the others, except as here-

inafter expressly directed or permitted.

Constitution of the State of Nebraska, Article II, Section 1.

[T]he legislative authority of the state shall be

vested in a Legislature consisting of one cham-

ber.

Constitution of the State of Nebraska, Article III, Section 1.

A person commits murder in the second degree

if he causes the death of a person intentionally,

but without premeditation.

Neb. Rev. Stat. § 28-304 (1989).

Question 2

In all criminal prosecutions, the accused shall

enjoy the right to . . . have the Assistance of

Counsel for his defense.

The Constitution of the United States, Article VI.

+

STATEMENT OF THE CASE

QUESTION 1

A. The statute

Prior to January 1, 1979, the Nebraska Legislature

had defined the crime of second degree murder as fol-

lows:

Whoever shall purposely and maliciously, but

without deliberation and premeditation, kill

another, every such person shall be deemed

guilty of murder in the second degree;

Neb. Rev. Stat. § 28-402 (1974) (emphasis added).

With the enactment of Laws 1977, LB 38, § 19! (here-

inafter “LB 38”), effective January 1, 1979, the Nebraska

Legislature recodified its criminal code and specifically

repealed “malice” as an element of the crime of second

degree murder. Since January 1979 the statutes of

Nebraska have defined the crime of second degree mur-

der as follows:

A person commits murder in the second degree

if he causes the death of a person intentionally,

but without premeditation.

Neb. Rev. Stat. § 28-304 (1989).

B. The offense

On April 12, 1986 the respondent, Ronald E. Williams

(hereinafter “Williams”), shot and killed an unarmed Eric

Holmes following a verbal altercation.

| App. 21.

Williams was charged with first degree murder, tried

and convicted by a jury of the lesser included offense of

second degree murder. As this homicide occurred after

the effective date of LB 38, Williams’ jury’s instructions

complied with the statute and did not list malice as an

element of the lesser included offense of second degree

murder. Williams’ only assignment of error on direct

appeal was the sufficiency of the evidence to convict, the

Nebraska Supreme Court affirmed and Williams’ judg-

ment of conviction became final. State v. Williams, 226

Neb. 647, 413 N.W.2d 907 (1987) (hereinafter “Williams

I”).

C. Ignoring the legislative act and the creation of a

common law crime.

On January 14, 1994 the Nebraska Supreme Court

filed its opinion in State v. Myers, 244 Neb. 905, 510

N.W.2d 58 (1994). In that opinion the court addressed an

issue not assigned or briefed by the parties and on its

own motion held:

The omission in the [jury] instructions on sec-

ond degree murder of malice as an element of

that crime was prejudicially erroneous and con-

stituted plain error, thereby entitling Myers to

reversal of his convictions and a new trial.

Id., 244 Neb. at 909. Myers also concerned a post-LB 38

crime.

JT

D. Williams’ collateral litigation

In 1988, Williams filed his first state postconviction

proceeding?, counsel was appointed, and an evidentiary

hearing was held on Williams’ 18 separa’> allegations

that his trial counsel, the Chief Deputy Douglas County

Public Defender, was constitutionally ineffective. Relief

was denied. The failure of Williams’ counsel to object to

his malice-less second degree murder jury instruction

was not among the 18 claims of ineffective assistance

urged. The Nebraska Supreme Court considered those

claims raised below on appeal, and affirmed the state

trial court’s denial of state postconviction relief. State v

Williams, 234 Neb. 890, 453 N.W.2d 399 (1990) (hereinafter

“Williams II’).

On these claims — insufficient evidence and ineffec-

tive counsel — Williams next prosecuted a federal habeas

corpus action and, again, relief was denied. Williams v.

Dahm, 963 F.2d 216 (8th Cir. 1992), cert. denied, __ US.

_, 113 S.Ct. 260, 121 L.Ed.2d 191 (hereinafter “ Williams

III”).

E. Williams obtains relief

His federal habeas action having failed to obtain him

relief, Williams nex! filed, in 1994, a second state postcon-

viction action claiming that his conviction was void

under the Nebraska Supreme Court’s 1994 ruling in

Myers. The state trial court found that Williams’ motion

2 Neb. Rev. Stat. § 29-3001 (1989)

for state postconviction relief was successive* and denied

relief. (App. 21-22).

On appeal, a sharply divided Nebras<a Supreme

Court granted Williams a new trial finding his original

trial counsel had been ineffective under the Sixth Amend-

ment in failing to object to the malice-less jury instruction

on second degree murder. State v. Williams, 247 Neb. 931,

531 N.W.2d 222 (May 5, 1995) (hereinafter “Williams IV”).

QUESTION 2

Under Strickland v. Washington, 466 U.S. 668 (1984),

the first standard for evaluating the effectiveness of a

criminal defendant’s counsel under the Sixth Amendment

is whether that counsel performed at least as well as a

lawyer with ordinary training and skill in the criminal

law in that area.

Williams’ trial counsel did not challenge the malice-

less second degree murder instruction presented Wil-

liams’ jury in 1986, which defined the crime in the lan-

guage of the statute. That attorney has now been found

by a majority of the Nebraska Suoreme Court to have

violated the Sixth Amendment in failing to do so. Yet no

other attorney practicing criminal law in the State of

* “Ordinarily, [a Nebraska] court will not entertain a suc-

cessive motion for postconviction relief unless the motion affir-

matively shows on its face that the basis relied upon for relief

was not available at the time the movant filed the prior motion.”

Williams IV, 247 Neb. at 935.

~

Nebraska in the 15 years between the January 1979 effex

tive date of LB 38 and the Nebraska Supreme Court's

1994 ruling in Myers had done so either

.

REASONS FOR GRANTING THE WRIT

QUESTION 1

WHETHER THE GUARANTEE CLAUSE OF THE FED-

ERAL CONSTITUTION PROTECTS THE CITIZENS OF

THE STATE OF NEBRASKA FROM THE CREATION

OF LAWS BY A BODY NOT DULY ELECTED BY THE

PEOPLE OF THAT STATE.

Introduction

A.

[his case is of enormous practical importance to the

State of Nebraska. The Nebraska Supreme Court's ruling

in this case effectively requires the release or retrial of

every convicted second degree murderer in Nebraska

from 1979 forward, approximately 130 admitted or con-

victed killers.

B.

rhis case is also of great legal importance because it

squarely presents the question of whether the guarantee

clause of the U.S. Constitution prohibits the state judici-

ary from literally enacting a criminal law when the state

constitution has assigned that power specifically and

exclusively to the state legislature.

The citizens of the State of Nebraska, also being

citizens of the United States, are presently confronted

here with an unanticipated and glaring shortcoming of

the traditional checks-and-balances system of constitu-

tional government. We now discover that for such a sys-

tem to work the Judicial Branch must be content to be the

neutral arbiter of disputes between the Executive Branch,

the Legislative Branch and the people. If the Judicial

Branch, being the final arbiter of constitutional questions,

attempts to legislate or govern, this system fails.

Unfortunately, the fatal flaw we witness here arises, |

in part, from a well intentioned effort to preserve and |

enhance the neutrality of our state judiciary by isolating

them from the pressures of public opinion. Our judiciary

is not elected, and once appointed they do not face oppo-

sition for retention.4

We now observe the other edge of that sword. Once

insulated from public control, a judiciary — particularly

the highest court of a state - which chooses to seize and

exercise a power clearly vested by the citizens of that

state in another branch of government, is without a mas-

ter. The checks-and-balances which are intended to pro-

tect all citizens from an arbitrary exercise of

governmental power dissolve before our eyes. Those

offended by that act have nowhere to turn for redress

within their state. Their sole source of hope is this Court

and the Guarantee Clause of the federal constitution.

I. NEBRASKA’S INTENDED SYSTEM OF GOVERN-

MENT

The Constitution of the State of Nebraska is the semi-

nal expression of the will of the citizens of this State

4 Constitution of the State of Nebraska, Art. V, Section 21.

en Le

insofar as their desires for the structure of their state

government. It is clear from the face of that document

that one branch of state government is forbidden from

exercising a power vested by the citizens of this state in

another branch of government.

[he powers of the government of this state are

divided into three distinct departments, the leg-

islative, executive and judicial, and no person or

collection of persons being one of these depart-

ments, shall exercise any power properly

belonging to either of the others, except as here-

inafter expressly directed or permitted.

Constitution of the State of Nebraska, Article Il. Section 1

It has long been understood in Nebraska that the power

to define crimes within this state rests solely with the | egis

lative Branch of state government, not the judiciary.

[T]he legislative authority of the state shall be

vested in a Legislature consisting of one chamber.

Constitution of the State of Nebraska, Article III, Section 1

In this state all public offenses are statutory; no act

is criminal unless the legislature has in express

terms declared it to be so:

State v. De Wolfe, 67 Neb. 321, 322, 93 N.W. 746 (1903).

It is not within the powers of the judicial branch of

the government . . . to enact laws or to define or

punish crime. Those matters are wholly within the

province of the Legislature.

Kinnan v. State, 86 Neb. 234, 236, 125 N.W. 594 (1910). See also

Campion v. Gillan, 79 Neb. 364, 370, 112 N.W. 585 (1907); State

Schenckloth, 210 Neb. 144, 313 N.W.2d 438, 441 (1981); State

Pettit, 233 Neb. 436, 451, 445 N.W.2d 890 (1989)

\

if

The relevant clauses of Nebraska’s constitution have

yt changed in any respect relevant to this question dur

ng this century

[he members of the Nebraska Legislature are elected

nd thus directly responsible to the citizen’s of this state

nstitution of the State of Nebraska, Art. Ill, Section 5. The

members of the Nebraska Supreme Court, by contrast, are

not elected. Constitution of the State of Nebraska, Art. \

I] THE GUARANTEE CLAUSI

A [he clause

f

[he Guarantee Clause provides

[he United States shall guarantee to every State

in this Union a Republican Form of Govern

ment

tution of the United States, Article IV, Section 4

B. The guarantee

lhe admission of the State of Nebraska into the Union

was predicated upon Nebraska’s chosen form of government

conforming with the Guarantee Clause. As the Nebraska

Supreme Court itself has noted, “The preamble to the act of

congress of February 9, 1867 (14 U.S. Statutes at Large, Ch

36, p. 391), which provided for the admission of the State of

Nebraska to the Union recites: ’ . . . whereas it appears that

the said people have adopted a constitution which, upon due

examination, is found to be republican in its form of

,irf | i

AJ} ' >

yy it Cc} i

.

tain irlat TI 1CI NEDT , Cl¢ [ I

aval | y eis | / wid rr ‘ ‘

1S¢ 1@¢ iatlV¢ DOd WIGeSDI I reemmy x

I

'

mong scholar nd jurist bout the re me

renibli in rc) rnn nt [THI / bir ' } r } ;

7 Lal bit ¢ VV I ilitil pate il il i i

1 republican form of government’ is the right of

people to choose their own orricer ror vgovernme

administration, and pass their own laws

icCa 139 U.S. 449, 461, 11 S.Ct 89] emt

ided). A rd, Harri iInaha 87 | SO (fk

10D) Here W é believe tne tizetr the tate

Nebraska to be iggrieved be ise the Jud I

tate government, created to be insulated from the |

ple has now usurped a power the definit! yf cris

behaviol! which the citize1 of Nebraska havi pe

tically reserved in their state constitution exclusively ¢

their elected representatives in the Legislative Brancl

ite government. Constitution of the State of Nebrask

Art I] section

thinkers have stressed that a republican government

one 1n which the people control their rulers Debor il

lones Merritt The (,uarantee Clau nd rate Aut

7 T

[ leraiism Fo? ] | rad Century ‘ole umn | ium.L. Iixé

988). See also Harris, 387 P.2d at 789

A | ® ‘ . ry + r

4 necessary corollary of this fundament princi

that state governmental entities must compliy with the

{

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-- _—

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13

Conn. 576, 39 L.R.A. 794). “There can be no liberty if

the power of judging be not separated from the legisla-

tive and executive powers. “ Id. at 216 (quoting

Montesquieu in State v. Johnson, 61 Kan. 803, 49 L.R.A

665). If a state’s highest court is the source of the viola-

tion of a republican form of government, rather than the

remedy for it, then the citizens’ only recourse is to the

tederal constitution itself

A legislature’s power is materially curtailed where

the judiciary assumes the role of defining the elements of

a criminal offense. See VanSickle v. Shanahan, 511 P.2d 223,

243 (1973). The Nebraska Legislature cannot re-repeal the

element of malice from its definition of the crime of

second degree murder. From the standpoint of the Legis

lature, it is gone. Here its absence is simply being ignored

by the Judicial Branch of state government

Under such circumstances, the violation of the sep

iration Of powers doctrine (which, in this context, is

‘inherent in the republican form of government”, id. at

241), through the refusal of the Nebraska Supreme Court

to adhere to the elements of a crime clearly set forth in

statute, 1s a violation of the Guarantee Clause. Id. at

235-244. Accord State v. Lehtola, 198 N.W.2d 354, 356 (Wis.

1972) (transfer of a substantial power from one branch of

the government to another branch, or transfer of a power

which is essential to the ‘separation of power’ doctrine, is

a violation of Article IV, Section 4 of the Constitution)

But see People of City of Thornton v. Horan, 556 P.2d 1217,

1220 (Colo. 1976), cert denied, 431 U.S. 966 (1977): In re

Interrogatories Propounded By Senate, etc., 536 P.2d 308, 316

(Colo. 1975)

Unlike the situation in

,uthorized the actions of the Nebraska Supreme Court

this situation: in fact, they have specifically through

their state constitution sought to prohibit such actio1

See People of City of Thornton, 556 P.2d at 1220. They have

clearly delegated the authority to define the elements o

criminal offenses to their elected Legislature and sought

to prohibit, through the eparation of powers clause ot

their state constitution, Judicial Branch encroachment

upon that power. Cor tutior f the State tf Nebrask

Art. Il, Section

The failure of a state highest court to follow

Legislative definition of the behavior the Legislat

chooses to deem riminal ind the injection | that court

of an additional element for which it simply has a pref

ence, directly violates the Guarantee Clause by encroas

ing on the Nebraska citizen right under our federal

} | +}

f

constitution to have the law UNCGeT

enacted by their elected represent

15

QUESTION 2

WHETHER A CRIMINAL DEFENDANT'S SIXTH

AMENDMENT RIGHT TO COUNSEL HAS BEEN

ABRIDGED WHEN THE RECORD AFFIRMATIVELY

DEMONSTRATES THAT THE NOW CHALLENGED

ACTIONS OF THAT DEFENDANT'S TRIAL COUNSEI

WERE (1) IN CONFORMITY WITH A CENTURY OF

STATE LAW, (2) IN CONFORMITY WITH THE STAT-

UTES UNDER WHICH THE ALLEGED CRIME WAS

PROSECUTED, AND (3) IN CONFORMITY WITH THE

UNIFORM PRACTICE OF TRIAL COUNSEL’S PEERS

IN THE PRACTICE OF CRIMINAL LAW WITHIN

THAT JURISDICTION

Introduction

In this case a divided Nebraska Supreme Court ha

found an ineffective assistance of counsel violation of th

Sixth Amendment of the federal constitution in a situa

tion in which the “ineffective counsel is faulted for

honoring and following pre-existing state law and then

ipplicable state statutes

More importantly, however, this counsel is further

faulted for failing to do what every other defense counse!

in the State of Nebraska was also failing to do between

January 1979 and January 1994, that is failing to conceiv:

of the argument that the Nebraska Supreme Court, rather

than Nebraska's Legislature, was free to define the ele

ments of a crime under Nebraska law. Williams’ trial

counsel did not conduct this defense in a manner deviant

from that of his peers in the criminal practice of law

Williams’ counsel undertook exactly the same course of

conduct as did his peers confronted with this same

tual situation. Such behavior is not a violatior

Washingt 166 U.S. 468 (1984

I. WILLIAMS WAS DECIDED UNDER A FEDERAI

CONSTITUTIONAL STANDARD

We note at the outset that there should be no confu

ion that Williams was granted relief based upon the

Nebraska Supreme Court's perception that there exists

here a federal constitutional violation. “This court has

idopte dat vO-part test for proving a claim of ineffective

issistance of counsel, as set forth by the U.S. Supreme

f j lAJ>

‘ 4 " , , ; .*

ourt in Strickland Washington, 466 U.S. 668

Williams IV, 531 N.W.2d at 227. (App. 8)

I] THE STATE COURT’S STRICKLAND ANALYSIS

\s noted above, Nebraska has adopted the Strickland

VVasningeton two pronged test for ineffective assistance

yf counsel. See State v. Robinson, 218 Neb. 156, 352 N.W.2d

879 (1984). In Williams IV the majority opinion correct!

tate tne applicable test as tollows

[}he standard for determining the propriety of

the claim is |1] whether the attorney, in re pre

ting the accused performed as least as well

lawyer with ordinary training and skill in

riminal law in the area. [2] Further, the

fendant must make a showing of how the

tendant was prejudiced in the defense of hi

r ; t bh; .

result of nis attorney actions or ina

‘ A

’ ; V\ | ’ ADI ‘ + '

. 4 ‘ t els 7 ' yf th ¢ ty kiana te

> > ’ ' ; . ,

17

[he test of an attornev’s performance under the Sixth

A | i |

\mendment and Strickland is a peer standard: How do

f 4

the efforts of this counsel compare to those of his contem

poraries of the criminal defense bar at that place and

[he maiority opinion s protestations to the contrary

Williams’ counsel has been found to have violated Strick

nd because he did not, in 1986. antic ipate the Nebraska

oupreme Courts injection of an additional. non-legis]

tive element into the definition of the crime of second

legree murder wu 994

\ [he majority opinion’s line of cases

ihe first prong of the trick test ist he

1dre ed within the factual framework tf the Nebr f

ipreme ( urt niectiol rm f ldit

,

Oon-lit iSiative ele ent [ rre I

‘

it’T

I} ' rit , . . ' }

i isa ( aes i

. ] | }

] trl oOunse! noula (

.

t tl ebraska Legi ture /Y reper

| f } ; ; ;

element of the rime : é :

nenow Ine;rtre rive i] Ipt { r tl | | {

mri O} basnei ore, t er he ‘

} i? é é rte (

18

Twelve of the fifteen cases relied upon by the major-

ity were decided after Williams’ trial was concluded on

November 21, 1986. See State v. Secret (1994); State v. Ladig

(1994); State v. Grimes (1994); State v. Blackson (1994); State

v. Myers (1994); State v. Franklin (1992); State v. Smith

(1992); State v. Illig (1991); State v. Dean (1991); State v.

Trevino (1988); State v. Ettleman (1988); and State v. Moniz

(Dec. 12, 1986). It is wholly inappropriate and illogical to

evaluate an attorney’s trial performance in 1986 based

upon subsequent developments in the law of the state in

which he practices.

Two of the remaining three cases must also be dis-

counted as they specifically involve crimes committed

before malice was repealed as an element of second

degree murder. State v. Samuels, 205 Neb. 585, 588, 289

N.W.2d 183 (1980) (Nov. 16, 1978 killing); and State v.

Clermont, 204 Neb. 611, 284 N.W.2d 412 (1979) (July 22,

1978 killing).

That leaves only one of the majority’s fifteen cases

even arguably applicable. That single case is State v. Rowe,

214 Neb. 685, 335 N.W.2d 309 (1983). Absolutely critical to

the Sixth Amendment analysis in which we are now

engaged should be the fact that the Myers issue was never

urged by Rowe’s counsel as a basis for reversal and was

not pivotal to the outcome of that case. Id., 214 Neb. at

686. The statement contained in Rowe, relied upon by the

majority, was incidental to the result, and had no prece-

dential value to the criminal law of Nebraska in 1986, nor

is it relevant to the inquiry before us now.

19

B. Contrary authority from the same court

In the fifteen years between January 1979, when

Nebraska’s malice-less second degree murder statute

became effective, and January 1994, when this court’s

“plain error” opinion in Myers was released, not one

attorney in the State of Nebraska apparently saw fit to

challenge Neb. Rev. Stat. § 28-304 (1989) as being defi-

cient in its definition of the crime of second degree mur-

der.

In fact, in the four years preceding Williams’ trial the

Nebraska Supreme Court affirmed four malice-less sec-

ond degree murder convictions without observing the

“plain error” later “discovered” in Myers. See State v.

Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984): State v. Sims,

213 Neb. 68, 331 N.W.2d 255 (1983) (In affirming, Justice

Caporale wrote for the court: “Defendant-appellant Wal-

ter L. Sims, was charged with second degree murder; the

intentional but unpremeditated killing of Gregory S.

Combs.”); State v. Brown, 213 Neb. 68, 327 N.W.2d 107

(1982); State v. Hardin, 212 Neb. 774, 779, 326 N.W.2d 38.

40 (1982).

Thus, at the time of Williams’ trial, four Nebraska

Supreme Court cases had affirmed second degree murder

convictions couched in the terms of LB 38. This history

supports, rather than discredits, the actions of Williams’

trial counsel here challenged.

Beyond that, this “plain” error was never observed by

Williams’ new attorneys in Williams II and Williams IIL

although they would surely have been the peers of Wiiliams’

trial attorney and represented the standard of practice by

No

which Williams’ trial counsel should be judged under

Strickland.

Finally, it is worthy of note that this “plain” error

which trial counsel is now deemed to have been constitu-

tionally “ineffective” for not raising, was also never

observed by the Nebraska Supreme Court when it

reviewed and affirmed Williams I in 1987 and Williams II

in 1990

C. Ineffective counsel?

In view of the Strickland standard and the factual

history discussed above, Williams’ trial counsel clearly

performed as least as well as a lawyer with ordinary

training and skill in the criminal law in the area.” How-

ever, the Nebraska Supreme Court’s majority opinion

erroneously and inexplicably departs from accepted

kland analysis to arrive at the contrary result.

lf not one criminal defense attorney in the State of

Nebraska challenged the sufficiency of a malice-less sec-

ond degree murder statute prior to Williams’ trial, then

under the first prong of the Strickland test, no attorney,

including Williams’, was constitutionally deficient for

tailing to challenge the statute or jury instructions drafted

in compliance with the statutory language.

[here exists a historical reason for this uniform lack

yf attack upon statutorily defined crimes. For nearly a

century, and well past the time of Williams’ trial, the

Nebraska Supreme Court had steadfastly adhered to the

proposition that under the constitution and laws of

Nebraska: “There are no common-law crimes in

21

Nebraska.” State v. Schaaf, 234 Neb. 144, 449 N.W2d 7

768 (1989); State v. Douglas, 222 Neb. 833, 388 N.W.2d 8

(1986): Kinnan VU. State, ele, Neb 234 125 NX W 594 (191

Based upon that premise the Nebraska Suprem

Court had also adhered for nearly a century to the props

sition that: “[T]o to charge a statutory offense it is suffi-

cient if it be charged in the language of the statute

Cordson v. State, 77 Neb. 416, 417, 109 N.W. 764 (19

(emphasis added); State v. Bow 244 Neb. 204

NLUW.2d 682 (1993)

We are aware of only two attornevs in the ent

history of Nebraska law who even publicly suggested

that Neb. Rev. Stat. § 28-304 (1989) was somehow int

prior to this court’s 1994 plain error” opini

[hey sat then and they sit now as members of t}

Nebraska Supreme Court. They were a minority. )

they sit with the Williams majority. See St

Neb. 436, 445 N.W.2d 890 (1989) Fahrnt

White, J., dissenting. For Strickland peer” a

poses, those two voices carry no weight

First, these two attorneys first published thei:

that a malice-less second degree murder statute

somehow infirm three years after Williams’ trial. Se

these two attorneys were not the Strickland, trial practi

tioner-peers of Williams’ counsel. Third, when offered

1989, the suggestion that § 28-304 (1989) required judi

amendment was soundly rejected by the Nebrask

oupreme Court.

Against this historical backdrop, how can Wil

1986 trial counsel be found to have violated Strick

Not one practicing attorney in the State of Nebrask.

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assistance of counsel. The federal court denied Williams

petition. On appeal, the U.S. Court of Appeals for the

Eighth Circuit affirmed the trial court’s judgment. The

appeals court held that the evidence was more than suffi-

ient to support Williams’ conviction and that he had

1

failed to establish that the alleged errors by his counsel

prejudiced his defense. William » Dahm, 963 F.2d 216

Sth Cir. 1992), cert. denied U.S 113 S. Ct. 260, 121

Ed. 2d 19]

Williams, at his jury trial and on his direct appeal to

court, was represented by the Douglas County public

lefender’s office. In his postconviction relief motion, Wil-

iams had appointed counsel. He also had appointed

yunsel in his federal court proceedings in the Eighth

Circuit Court of Appeals. None of Williams’ counsel in

iny of those proceedings brought to any court’s attention

that the court at Williams’ jury trial had failed to instruct

the jury that malice is a material element of second

degree murder and that to convict Williams, it was neces-

sary for the State to prove beyond a reasonable doubt not

only that Williams intentionally caused the death of

Holmes without premeditation but that he did so with

malice. Malice is that condition of the mind which is

manifested by intentionally doing a wrongful act without

just cause or excuse. State v. Dean, 246 Neb. 869, 523

N..W.2d 681 (1994).

On April 4, 1994, Williams filed pro se a second

motion for postconviction relief in the district court for

Douglas County. Williams alleged that the trial court

violated his rights under Neb. Const. art. I, § 3, and the

5th and 14th Amendments to the U.S. Constitution by not

including in its jury instructions that malice is an element

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App. 8

It is undisputed that Williams’ trial counsel did not

object to jury instruction No. 5 or 7. Williams claims that

he received ineffective assistance of counsel due to coun-

sel’s failure to object to the instructions.

This court has adopted a two-part test for proving a

claim of ineffective assistance of counsel, as set forth by

the U.S. Supreme Court in Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When a

defendant in a postconviction motion alleges a violation

of his constitutional right to effective assistance of coun-

sel as a basis for relief, the standard for determining the

propriety of the claim is whether the attorney, in repre-

senting the accused, performed at least as well as a law-

yer with ordinary training and skill in the criminal law in

the area. Further, the defendant must make a showing of

how the defendant was prejudiced in the defense of his

case as a result of his attorney’s actions or inactions. State

v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993). See State

v. Clausen, ante p. 309, 527 N.W.2d 609 (1995).

The first prong in determining the propriety of Wil-

liams’ claim is whether the trial attorney, in representing

the defendant, performed at least as well as a lawyer with

ordinary training and skill in the criminal law in the area.

A defendant, therefore, must show that counsel’s pertor-

mance fell below an objective standard of reasonableness.

State v. White, 246 Neb. 346, 518 N.W.2d 923 (1994).

In a criminal trial, the court in its instructions must

delineate for the jury each material element the State is

required to prove beyond a reasonable doubt to convict

the defendant of the crime charge. State v. Nielsen, supra.

App. 9

In State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994),

we held that it is plain error for a jury instruction on

second degree murder to omit malice as an element.

Williams’ jury trial court committed the identical error in

its jury instruction in defining the elements of second

degree murder. Williams’ counsel's failure to object to the

erroneous jury instruction permitted the jury to find Wil-

liams guilty of second degree murder without consider-

ation of whether his actions satisfied a material element

of the crime. The failure of defense counsel in a criminal

trial to object to an instruction which omits a material

element of the crime charge cannot be considered to be

within the wide range of professionally competent assis-

tance. See Gray v. Lynn, 6 F.3d 265 (5th Cir. 1993).

The State, referring to a “line of cases” in which we

upheld second degree murder convictions even though

malice was not mentioned, brief for appellee at 8, con-

tends that in 1986 it could not be ineffective assistance for

a criminal defense attorney to not object to the instruction

given the Williams jury. As we stated in State v. Grimes,

246 Neb. 473, 484, 519 N.W.2d 507, 516 (1994):

The State’s argument that this court only

recently, in State v. Myers, supra, added malice as

an element of second degree murder, shows

ignorance of, or the disregard for, 11 years of

consistent holdings by this court. The sugges-

tion that including malice as an element of sec-

ond deyree murder “transgresses important and

well-established principles of law” [citation

omitted], itself transgresses important and well-

established principles of law. As we pointed out

App. 10

in Myers, if malice were not an element of sec-

ond degree murder, the homicide statutes would

not make sense.

Our holding in State v. Myers regarding the essential

elements of second degree murder, contrary to the State’s

position, did not establish a new rule of law but rein-

forced that “this court has continued to require malice as

an element of second degree murder.” 244 Neb. at 908,

510 N.W.2d at 63. We have continuously held that the

adoption of the current criminal code did not eliminate

malice as an element of second degree murder. We reaf-

firm those holdings as hereinafter set forth.

According to Neb. Rev. Stat. § 28-304(1) (Reissue

1989), “[a] person commits murder in the second degree

if he causes the death of a person intentionally, but with-

out premeditation.” The Legislature adopted the current

criminal code in 1977, with an effective date of July 1,

1978. See 1977 Neb. Laws, L.B. 38, § 325. Since the effec-

tive operative date of 1977 Neb. Laws L.B. 38, the follow-

ing cases have specifically held that the essential

elements of the crime of murder in the second degree are

that the killing be done purposely and maliciously: State

v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994); State v.

Ludig, 246 Neb. 542, 519 N.W.2d 561 (1994); State v.

Grimes, supra; State v. Blackson, 245 Neb. 833, 515 N.W.2d

773 (1994); State v. Myers, supra; State v. Franklin, 241 Neb.

579, 489 N.W.2d 552 (1992); State v. Smith, 240 Neb. 97,

480 N.W.2d 705 (1992); State v. Illig, 237 Neb. 598, 467

N.W.2d 375 (1991); State v. Dean, 237 Neb. 65, 464 N.W.2d

782 (1991); State v. Trevino, 230 Neb. 494, 432 N.W.2d 503

(1988); State v. Ettleman, 229 Neb. 220, 425 N.W.2d 894

(1988); State v. Moniz, 224 Neb. 198, 397 N.W.2d 37 (1986);

App. 11

State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983); State v

Samuels, 205 Neb. 585, 289 N.W.2d 183 (1980); State v.

Clermont, 204 Neb. 611, 284 N.W.2d 412 (1979). Clearly,

our holding in this case does not subject Williams’ coun-

sel to hindsight, as the State contends. Before Williams

was tried, the current criminal code was in effect and we

had already held that malice continued to be a material

element of second degree murder.

The State also contends that an attorney with ordi-

nary skill in the area of criminal law does not object to

jury instructions which follow the statutory elements of a

crime. Jury instructions that set forth only the statutory

elements of a crime are insufficient when they do not set

forth all the essential elements of the crime. See State v.

Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994) (citing State

v. Oman, 265 Minn. 277, 121 N.W.2d 616 (1963); Ex parte

Allred, 393 So. 2d 1030 (Ala. 1981): Stevens v. State, 817

S.W.2d 800 (Tex. App. 1991)).

The fact that Williams’ counsel fell below an objective

standard of reasonableness does not alone amount to a

Sixth Amendment violation. The second prong of the

ineffective assistance of counsel standard centers upon

whether the deficient performance of counsel prejudiced

the defendant's case. The prejudice component focuses on

whether counsel’s deficient performance rendered the

results of the trial unreliable or the proceeding funda-

mentally unfair by depriving the defendant of a substan-

tive or procedural right. Lockhart v. Fretwell, _. ;U.S. __,

113 S. Ct. 838, 122 L. Ed. 2d 180 (1993); Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

App. 12

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. See State v. Grimes, supra. An

instruction or instructions which by the omission of cer-

tain elements have the effect of withdrawing from the

jury an essential issue or element in the case are preju-

dicially erroneous. Id. The essential elements in the crime

of murder in the second degree are that the defendant

killed the victim purposely and maliciously. Failure to

include the element of malice in the jury instruction on

second degree murder constitutes plain error. See State v.

Myers, 244 Neb. 905, 510 N.W.2d 58 (1994). The instruc-

tion relied upon by the jury in finding Williams guilty of

second degree murder prejudiced the proceedings against

Williams.

The jury convicted Williams of second degree murder

based upon an incomplete definition of the crime. We

note such an error is plain error which deprived Williams

of a fundamentally fair and reliable trial. As a result of

the prejudicial jury instructions and ineffective assistance

of counsel, Williams’ convictions must be overturned.

Reversal for trial error, such as incorrect instructions

and ineffective assistance of counsel, implies nothing

with respect to the guilt or innocence of a defendant.

Rather, it is only a determination that a defendant has

been convicted through a judicial process which is defec-

tive in some fundamental respect. Reversal based upon

trial error does not bar a retrial of a criminal defendant.

See, Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L.

Ed. 2d 1 (1978); State v. Chambers, 233 Neb. 235, 444

N.W.2d 667 (1989).

App. 13

We reverse the judgment of the second postconvic-

tion district court and grant Williams’ postconviction

relief motion. Because Williams’ conviction for use of a

weapon in the commission of a felony is dependent upon

his conviction of an underlying felony, both the second

degree murder charge and the charge of use of a weapon

in the commission of felony are set aside, and the matter

is remanded to the district court with direction to grant

Williams a new trial on both of the charges.

REVERSED AND REMANDED WITH DIRECTION.

WriGHt, J., dissenting.

I respectfully dissent from the majority’s decision. As

I have consistently stated since State v. Grimes, 246 Neb.

473, 519 N.W.2d 507 (1994) (Wright, J., dissenting), I dis-

agree with the majority’s holding that malice is an essen-

tial element of the crime of second degree murder. See,

also, 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. Man-

zer, 246 Neb. 536, 519 N.W.2d 558 (1994).

With State v. Myers, 244 Neb. 905, 510 N.W.2d 58

(1994), this court has used the plain error doctrine to

expand the scope of its holding that malice is an essential

element of second degree murder. In Myers, the court

found plain error because the jury instructions did not

include malice as an element of second degree murder. In

Manzer, Ladig, and Martin, the court found plain error

because the information charging second degree murder

did not allege malice as an element of the crime.

This is Williams’ second attempt at postconviction

relief based on a claim of allegedly ineffective assistance

App. 14

of counsel. It is his burden to establish a basis for such

relief. See State v. Williams, 234 Neb. 890, 453 N.W.2d 399

1990). In order to sustain a claim of ineffective assistance

of counsel, the party must show that (1) counsel’s perfor-

mance was deficient and (2) such deficient performance

prejudiced the defense, that is, a demonstration of rea-

sonable probability that, but for counsel’s deficient per-

formance, the result of the proceeding would have been

different. Id. In the appeal following Williams’ first post-

conviction relief request, we found that Williams had not

established that his trial counsel was ineffective and had

failed to establish any prejudice resulting from his trial

counsel’s decisions. On the appeal following the second

postconviction relief request, the majority now holds that

Williams had ineffective counsel because the issue of

malice as an element of second degree murder was not

raised during two prior visits to this court. | disagree.

In Williams’ direct appeal, his sole assignment of

error was that the evidence was insufficient to sustain the

convictions. State v. Williams, 226 Neb. 647, 413 N.W.2d

907 (1987). The jury instructions were a part of the record

on direct appeal, but this court did not find plain error in

the fact that the jury instructions did not include malice

as an element of second degree murder. In Myers, this

court stated that the only issue on Williams’ direct appeal

was whether the evidence was sufficient to support a

conviction for intentional killing rather than Williams’

claim of self-defense.

In 1988, Williams filed his first motion for postcon

viction relief. At the evidential hearing in district court,

Williams alleged 18 examples of ineffective assistance by

his trial counsel. None of these examples mentioned the

A pp 15

failure of trial counsel to object to the jury instructions.

On appeal, Williams set forth five grounds for his claim

of ineffective assistance of trial counsel. This court found

no merit to any of these claims. We stated: “The evidence

at trial against the defendant was overwhelming. His

attorney was an experienced trial lawyer who performed

as a lawyer possessing ordinary training and skill in

criminal law in the area should have done.” Williams, 234

Neb. at 899-900, 453 N.W.2d at 405.

At his jury trial and on direct appeal, Williams was

represented by the Douglas County public defender’s

office. In his first postconviction action and in the U.S

Court of Appeals for the Eighth Circuit, Williams was

represented by court-appointed counsel. None of these

attorneys brought to any court's attention the fact that the

jury instructions did not state that malice was an element

of second degree murder.

In this second postconviction appeal, the majority

states: “We have continuously held that the adoption of

the current criminal code did not eliminate malice as an

element of second degree murder.” Thus, the majority

establishes that the basis for Williams’ requested relief

was available to him at the time of his first motion for

postconviction relief and on appeal from the denial of

that motion. As the majority notes, a second motion for

postconviction relief will not ordinarily be entertained

unless the motion affirmatively shows on its face that the

basis for the requested relief was not available at the time

the movant filed the prior motion. See, State v. Keithley,

ante p. 638, __ N.W.2d __ (1995); State v. Lindsay, 246

Neb. 101, 517 N.W.2d 102 (1994); State v. Stewart, 242 Neb.

712, 496 N.W.2d 524 (1993); State v. Luna, 230 Neb. 966,

ici

234 Neb. 890, 453 N.W.2d 399 (1990)

17

App

time of William’s first motion for postcon-

K1ISTE d at tne

ction relief. A motion for postconviction relief cannot

used to secure review of issues which were or could

ve been litigated on direct appeal, no matter how those

sues may be Stewart

phrased or rephrased. State v

Nor can those issues be raised in an appeal con

an

i; 4

1 second motion for postconviction relief.

[heretore, I dissent from the opinion of the majority

because I| believe that Williams has no right to postcon-

iction relief. As we stated in the first postconviction

roceeding, the evidence against Williams was more than

ufficient to sustain the convictions, and he was repre-

sented by an experienced trial lawyer who met the neces

sary standard to be considered effective. State v. Williams

14 I would affirm the

listrict court’s denial of Williams request for postconvic-

in relief

join in this dissent

,

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 State Capitol Building

.incoln, Nebraska 68509

(402) 471-3731

|. Kirk |

ATTORNEY GENI

2115 State (

IN CASE Ol »-94

\ppellee/ Motion for Rehearing & Brf filed

has been reviewed by the court and the following order

entered: Motior fr appetier

Respectfully,

CLERK OF THE SUPREMI

COURT AND COURT OF APPEALS

NEBRASKA SUPREME COURT

AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK

P.O. BOX 98910

2413 State Capitol Building

Lincoln, Nebraska 68509

(402) 471-3731

IN CASE OIF i

Mot t tay Mandate filed 5S has been

reviewed by the court and the following order entered

Respectfully

CLERK OF THE SUPREMI

COURT AND COURT OF APPEALS

App. 21

IN THE DISTRICT COURT OI

DOUGLAS COUNTY, NEBRASKA

rHE STATE OF NEBRASKA ) Docket 119 Page 29

Plaintift |

ORDER

RONALD E. WILLIAMS

i «

rt iefendant has filed a motion for post conviction

ef Defendant’s motion and the files and records of the

:se show to the satisfaction of the Court that the defen

lant is entitled to no relief and, therefore, tlat no eviden

tiarv hearing need be held

Defendant was found guilty by a jury of the crime of

econd degree murder and was subsequently adjudged

nvicted of such crime and was sentenced to a term of

years imprisonment on November 21, 1986

Defendant asserts as his only assignments of error

that: (1) The Court neither included nor defined “malice”

1s a necessary element of second degree murder in its

instructions to the jury and (2) that his trial counsel failed

to object to the jury instructions which neither included

nor defined “malice” as a necessary element of second

degree murder

Defendant is correct in asserting that the trial court

did not include nor define “malice” as a necessary ele-

ment of second degree murder in its instructions to the

jury and that trial counsel did not object to the jury

instructions in that regard. Trial counsel's performance

ee

App. 22

clearly met the required standard in that respect inas-

much as since the adoption of the current criminal code

on January 1, 1979, jury instruction on the essential ele-

ments of second degree murder virtually without excep-

tion have followed the language of the statute and have

not included “malice” as a necessary element. Moreover,

the omission of “malice” as a necessary element of second

degree murder has never been raised as an assignment of

error On appeal to the Supreme Court or to the Court of

Appeals.

The defendant appealed his judgment of conviction

and sentence to the Supreme Court which affirmed the

judgment of conviction and sentence. State v. Williams,

226 Neb. 647, 413 N.W.2d 907 (1987). Subsequently, defen-

dant filed a motion for post conviction relief which was

denied and defendant appealed that judgment to the

Supreme Court which affirmed the judgment of the trial

court. State v. Williams, 234 Neb. 890, 453 N.W.2d 399

(1990). In neither appeal did the defendant raise as error

the omission of malice as an essential element of the

crime of second degree murder in the Court's instructions

to the jury.

A motion for post conviction relief cannot be used to

secure review of issues which were known to the defen-

dant at the time of trial and which were capable of being

raised but were not raised in the defendant's direct

appeal or on a prior motion for post conviction relief.

State v. Petitte, 228 Neb. 144, 421 N.W.2d 460 (1988).

Notwithstanding the foregoing, the Court addresses

the defendant’s assignment of error. Prior to the adoption

of the present criminal code, the second degree murder

App. 23

statute defined such a killing as one done “purposely and

maliciously”. Nebraska Revised Statute 28-402 (Reissue

1975). The current code, which became effective on Janu-

ary 1, 1979, states that “A person commits murder in the

second degree if he causes the death of a person inten-

tionally but without premeditation.” It does not mention

malice.

Since the adoption of the current criminal code, there

appear to be two lines of cases that have emanated from

the Supreme Court that address (or do not address) the

matter of malice as an essential element of the crime of

second degree murder.

In one line of cases, in which malice is not included

as an essential element in the Court’s instructions to the

jury, the Supreme Court’s opinion on appeal makes no

mention of malice as an essential element. Some of those

cases are: The direct appeal in this case; State v. Lowe, 244

Neb. 173, 505 N.W.2d 662 (1993); State v. Toney, 243 Neb.

237, 498 N.W. 2d 544 (1993); State v. Houser, 241 Neb. 525,

490 N.W.2d 168 (1992); State v. Cave, 240 Neb. 783, 484

N.W.2d 458 (1992); State v. Rokus, 240 Neb. 613, 483

N.W.2d 149 (1992); State v. Morrow, 237 Neb. 653, 467

N.W.2d 63, (1991); State v. Jackson, 231 Neb. 207, 435

N.W.2d 893 (1989); and State v. Hardin, 212 Neb. 774, 326

N.W.2d 38 (1982).

In Cave, the Supreme Court specifically stated: “In

order to convict a person of second degree murder, the

State is required to prove all three elements — the death, the

intent to kill, and causation — beyond a reasonable doubt.”

(Emphasis added) Malice is not mentioned as an element.

App. 24

In the second line of cases, although the issue of

whether malice is an essential element of second degree

murder was not raised, the Court, nonetheless, has

repeated stated: “The essential elements in the crime of

murder in the second degree are that the killing be done

purposely and maliciously.” State v. Rowe, 214 Neb. 685,

335 N.W.2d 309 (1983); State v. Moniz, 224 Neb. 198, 397

N.W.2d 37 (1986); State v. Ettleman, 229 Neb. 220, 425

N.W.2d 894 (1988); State v. Trevino, 230 Neb. 494, 432

N.W.2d 503 (1988); State v. Dean, 237 Neb. 65, 464 N.W.2d

782 (1991); State v. Illig, 237 Neb. 598, 467 N.W.2d 375

(1991); State v. Franklin, 241 Neb. 579, 488 N.W.2d 552

(1992); and State v. Myers, 244 Neb. 905, _s N.W.2d ___

(1994).

In State v. Rowe, the killing occurred in 1980, shortly

after the new criminal code became effective. In making

the statement that: “The essential elements in the crime of

murder in the second degree are that the killing be done

purposely and maliciously,” the Supreme Court cited

State v. Clermont, 204 Neb. 611, 284 N.W.2d 412 (1979). In

Clermont, the killing occurred and the case was tried

under the previous criminal code wherein the statute

clearly provided that for second degree murder, the kill-

ing be done purposely and maliciously and, therefore,

‘maliciously” were, under the prior

‘

“purposely” and

criminal code, clearly elements of second degree murder.

In concluding that “The essential elements of the

crime of murder in the second degree are that the killing

be done purposely and maliciously,” the Moniz court cites

Rowe, the Ettleman court cites Moniz, and Trevino court

cites Ettleman, the Dean court cites Trevino and Ettleman,

App. 25

the Franklin court cites Dean and Rowe, the Illig court cites

Rowe, and the Myers court cites Rowe, Franklin, and Dean.

It should be noted that in Ettleman, Trevino, and Illig,

the Court held that “purposely and maliciously” are

essential elements of second degree murder notwith-

standing that the instructions to the jury gave the ele-

ments in the language of the criminal code and did not

include “purposely and maliciously”.

And, in Illig, notwithstanding that the jury instruc-

tion did not include “purposely or maliciously” and not-

withstanding that the Supreme Court held that

“purposely and maliciously” are essential elements of

second degree murder, the Supreme Court earlier in its

opinion stated that: “The trial court correctly instructed

the jury as to second degree murder... . ” Illig at 601.

It appears that the use of the language “purposely

and maliciously” from the prior criminal code began in

State v. Rowe, supra and was perpetuated in the above

cited cases that. followed. Although as stated above, no

cases have raised as an assignment of error that malice

was not included as an essential element in the jury

instructions, the Court in Meyers took up the matter as

plain error and specifically concluded that malice is an

essential element of second degree murder and, for the

first time, the Court, addressing that issue, stated that:

“By omitting the element of malice from the second

degree murder instruction, the instruction, in effect,

became one for the crime of intentional manslaughter as

defined by this Court in State v. Pettit, 233 Neb. 436, 445

N.W.2d 890 (1989). Malice is not an essential element of

af

manslaughter.

App. 26

However, in Pettit, the Court stated: “Consequently,

we hold that, to sustain a conviction for voluntary man-

slaughter under Section 28-305(1), that is, a conviction for

killing another, without malice, ‘upon a sudden quarrel’,

the State, by evidence beyond a reasonable doubt, must

prove that the defendant intended to kill, and did kill,

another. Thus, intentional criminal homicide as a result of

legally recognized provocation distinguishes voluntary

manslaughter “upon a sudden quarrel” from another inten-

tional criminal homicide, murder in the second degree,

namely, ‘a person commits murder in the second degree if

he causes the death of a person intentionally, but without

premeditation.’ Section 28-304.” (Emphasis added)

Notwithstanding the foregoing, the Supreme Court

in State v. Jones in an opinion filed May 6, 1994, has now

determined that there is no longer voluntary manslaugh-

ter consisting of an intentional criminal homicide and,

therefore, there is no such crime in Nebraska as inten-

tional manslaughter. The Court went on to say that: “Mal-

ice has most recently been defined in our cases as ‘that

condition of the mind which is manifested by the inten-

tional doing of a wrongful act without just cause or

excuse’ ”, and followed by: “Since our statutes define

manslaughter as a killing without malice, there is no

requirement of an intention to kill in committing man-

slaughter. The distinction between second degree murder

and manslaughter upon a sudden quarrel is the presence

or absence of an intention to kill. State v. Pettit, 233 Neb.

436, 445 N.W.2d 890 (1989) was incorrect in its reasoning

and holding, and to that extent, it is overruled.”

By that language, the Court appears to have done

two things:

App. 27

1. It has eliminated its articulation of a rationale for

its conclusion that malice is an essential element of sec-

ond degree murder which was previously stated in State

v. Myers, which was and is the only articulated rationale

for the entire line of cases beginning with State v. Rowe

where the Court has held that “purposely” and “mali-

ciously” are essential elements of the crime of second

degree murder.

2. In distinguishing second degree murder and

manslaughter upon the presence or absence of an inten-

tion to kill, coupled with its definition of malice, it has

equated “malice” with “intentional” thus making it diffi-

cult to rationalize the notion that “malice” in addition to

“intentional” are both necessary elements of second

degree murder.

Taking into consideration that:

1. There are no common law crimes in

Nebraska. State v. Schaaf, 234 Neb. 144, 449

N.W.2d 762 (1989) and State v. Pettit, supra.

2. Within constitutional boundaries, the

legislature is empowered to define a crime and

punish a person’s conduct expressly declared to

be criminal. State v. Pettit, supra.

3. In construing a penal statute, the Court

cannot supply language which is absent from

the statutory definition for a criminal offense.

State v. Schaaf, supra.

4. No act is criminal unless the legislature

has in expressed terms declared it to be so and

no person can be punished for an act or omis-

sion which is not made penal by the plain

sea

import of writte! e State v. Douglas, 222

principle for statu-

tory nstruct that penal statute is to be

strictly construed tat Douglas, supra.

6 Strict construction of a criminal statute

is based on the need to provide fair warning of

what conduct is criminal and to ensure that the

legislature rather than the courts define criminal

behavior. Huddleston v. United States, 415 U.S.

814, 94 S.Ct. 1262 (1974).

A jury instruction that charges the jury

in the statutory language of the crime is appro-

priate. See State v. Jordan, 229 Neb. 563, 427

N.W.2d 796 (1988).

this Court concludes that the better reasoned line of cases

appears to be those in which the Supreme Court has

affirmed the conviction and sentence on appeal where the

jury instructions submitted the elements in the language

of the statute and the Court did not indicate that “pur-

posely and maliciously” were essential elements of the

crime of murder in the second degree.

Therefore, the Court finds that the instruction given

here on the elements of second degree murder in the

language of the statute, but not including “malice” was

appropriate, and that, therefore, defendant’s contention

that it was error to fail to include malice as a necessarv

element is without merit.