# Petition for Writ of Certiorari — Nebraska v. Williams

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1636%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 1008

## Text

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
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

{
i

court

-- _—
—
+ " ~
a

— ‘

7 —
- Y la
— — oe

iS -
J r
wv * ous
. +
> se
+

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.

LUSION

ON ¢

(

* ? r
‘ . } } ; ‘ a Ln» ee
f ‘ ‘ »
, , .
} , + +} ‘ ‘ } } .
‘ é ¢ >T f ¢ r - ‘
‘ - +} ‘ ; ' ; . } , 1 |
¢ ‘ T ‘ T are t , r ty ,
i i j } }
, +s4 ‘ r ‘ } . +} , : . , arb | +}
i a it ial VV i it \ t
; ; } , ‘ 1112 +} ‘ : »le t ‘ +} ‘ ,
. i AiViICiU ~ Lit Z4 eied \
; +} + + ' ry + ' ‘ , ; ++
f r f ( re | ] ra e¢ ( 1S¢é ‘ f ‘
r 1 7 ry ; y r . . } . ;
f ‘ ] é ¢ PK é é I ] l¢ ‘
. 4 ‘ rhs ‘ , ‘ aa’ ‘ Or t \lohy L
"
ry ; +} ; ’ ‘ +r ‘ ; ‘ : as
f ¢ 7 ~
‘ , ‘ +} ’ ; ‘ } ; ‘
y ‘ } +} , ot r +
} } ‘ ‘ , + +}
. } ry ; ' +, + ‘ r . " ‘
i t } i (
OT t en JET ! f ‘ K ¢ ] ( 7
, . , , ’ } ‘ y _ > + ‘ ry +14
t é ¢ f
‘ ‘ ; ‘ , ’ +} ‘ . ‘ ry + ; r ‘
‘ ] if: 1Té :
r
ir ; ’ + +} ’ . ry ;
‘ A ‘ i ‘ vf r A} ‘
+x , +} ; ’ + ‘ ; y ; +, ,
é 1¢ la ¢
+} r y r+ . + ; } } k ; ' | agar ‘ art
V i : i a6 i 7 i v¥
P r . ‘ ] _ . ‘ th, Salataaial. + ¢ rr + , t
VV ( i i l ~ « i i, } eo 7 }
] ‘ } . if
. 7 , , ry , } } nr ? ‘ ay
»1 x \ ‘ | ‘ ¢ € > ]
+4 , , | #) , ; rr ; ’ }
é é ] ‘ ‘ 1 ¢ ‘ ‘

as
>
+ +

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

| ‘ , > ’ if
‘ f
; ts ‘ ; > ‘ reir
P ‘
y
j [ :
; vf
. =e , {oror | |
~~ :
‘ ‘
; |
, ¥. VY
i La ».¥Y¥ t
i ‘
LWP yy : i | ‘i
+++ ' . . . t air
‘ y¥

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1636%3A1. Public record. Not legal advice.