Petition for Writ of Certiorari — Egan v. Wells Fargo Alarm Services
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Supreme Court, U.S.
FILED
95-242 AUG 1 0 i995
No.
UFFICE UF THE CLERK
In The
Supreme Court of the United States
October Term, 1995
¢
STATE OF NEBRASKA,
Petitioner,
VS.
RONALD E. WILLIAMS,
Respondent.
+
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
J. Kirk Brown, #10456
Counsel of Record
Assistant Attorney General
P.O. Box 98920
Lincoln, Nebraska 68509-8920
Tel: (402) 471-2682
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED FOR REVIEW
The 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
Nebraska.
1. Whether the Guarantee Clause of the federal con-
stitution protects the citizens of the State of Nebraska
from the creation of state law by individuals not duly
elected by the people of that state.
2. 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-
formity with a century of state law, (2) in conformity with
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.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........... i
TABLE OF COBTEINGD « osc0s0csencened suuusnnokews ii
TABLE OF AUTHORITIES CITED. ........-sseesee- iv
OPINIONS DELIOW «oes nc ce cuvicnevsssssueeeneeieee 1
STATEMENT OF PUREE TIORS. 2 occ sive ctvewees 1
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS APPLECAGEE oo in cinereus neueeanaeeees 2
Cospetion 3... .ccccvss denne ecsaweaee eee 2
(mestion 2... ckcsccaghcinas nee 2
STATEMENT OF THE CAG « ous cadssccsscuneneaess 3
COIRSTOIOIN 4 oo osc.0siveasceeeeens ae eee eee 3
A. Fhe etait. ..6.03650iciese sae 3
B. The o06gle....«. csisécscescseee eee 3
C. Ignoring the legislative act and the creation
of a gommon law CHINE ...6.6 50 xc a ces sacess 4
D. Williams’ collateral litigation .............. 5
E. Wiliams cial QUtb ss. 6s5c55sdiawesanes 6
CRIBSTION 2. ics 00s sceeenes cee eee 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 THAT STARS qu6 554s. ceseee eee 7
ili
TABLE OF CONTENTS - Continued
Page
Ss Fee Ue ves eeu des bas tee nke 7
I. NEBRASKA’S INTENDED SYSTEM OF GOV-
ah A ae as cie'e we o'<b Canis Soc 8
Il. THE GUARANTEE CLAUSE................. 10
EE ein e ss Wie cs 04 W's oo vcaea'edons 10
EE See ee See 10
QUESTION 2: WHETHER A CRIMINAL DEFEN-
DANT’S SIXTH AMENDMENT RIGHT TO COUN-
SEL HAS BEEN ABRIDGED WHEN THE RECORD
AFFIRMATIVELY DEMONSTRATES THAT THE
NOW CHALLENGED ACTIONS OF THAT
DEFENDANT’S TRIAL COUNSEL WERE (1) IN
CONFORMITY WITH A CENTURY OF STATE
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 CRIMINAL
LAW WITHIN THAT JURISDICTION ............ 15
PS G00 ao oi 0.0 wes bdwevencuds evdcends 15
I. WILLIAMS WAS DECIDED UNDER A FED-
ERAL CONSTITUTIONAL STANDARD ...... 16
Il. THE STATE COURT’S STRICKLAND ANAL-
RS SE SR 16
A. The majority opinion’s line of cases ..... 17
B. Contrary authority from the same court.. 19
rrr errs ne 20
State a Si ae 22
iv
TABLE OF AUTHORITIES CITED
Page
CASES
Campion v. Gillan, 79 Neb. 364, 112 N.W. 585
CRONE > ice diesen sa cae eee wens ee ere ereerente es G
Cordson v. State, 77 Neb. 416, 109 N.W. 764 (1906) .... 21
Duncan v. McCall, 139 U.S. 449, 11 S. Ct. 573
"5. | EPP eRe epiC ST rare) Cra aces Meld oe a Nr 11
Harris v. Shanahan, 387 P.2d 771 (Kan. 1963)........ 11
In re Interrogatories Propounded By Senate, etc.,
SM P26 FOS CO. Tle) + hp a es heen fades ves 13
Kinnan v. State, 86 Neb. 234, 125 N.W. 594 (1910) ..9, 21
People of City of Thornton v. Horan, 556 P.2d 1217
(Colo. 1976), cert. denied, 431 U.S. 966 (1977). .13, 14
State of Nebraska v. Ronald E. Williams, 247 Neb.
931, 531 N.W.2d 222 (May 5, 1995) ....... i, 6 16, 17
State v. Bowen, 244 Neb. 204, 505 N.W.2d 682
Ey, | REE REINA? RAL MD pene harm WA RET URS 21
State v. Brian, 84 Neb. 30, 120 N.W. 916 (1909)...... 11
State v. Brown, 213 Neb. 68, 327 N.W.2d 107 (1982) .... 19
State v. Clermont, 204 Neb. 611, 284 N.W.2d 412
CPUS le ok ORT ei ie. 18
State v. De Wolfe, 67 Neb. 321, 93 N.W. 746 (1903) ..... 9
State v. Douglas, 222 Neb. 833, 388 N.W.2d 801
| PPE OO ey horas MME go Pei gE ue, IN tale 21
State v. Hardin, 212 Neb. 774, 326 N.W.2d 38
CREE ok no ee eee ea ees RL neue tes 19
State v. Lehtola, 198 N.W.2d 354 (Wis. 1972) ........ 13
State v. Myers, 244 Neb. 905, 510 N.W.2d 58
CEU +45 nen tue VES vd os Be hae Oe Sh eee ks passim
:
i
[
;
Vv
TABLE OF AUTHORITIES CITED - Continued
Page
State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989) ..9, 21
State v. Robinson, 218 Neb. 156, 352 N.W.2d 879
CeO nia 6 8S eV oka cane) aber eee 16
State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983) .... 18
State v. Samuels, 205 Neb. 585, 289 N.W.2d 183
CIR Fo ss a ae ee ee 18
State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762
COT 66 555 65a ea a ee eee 21
State v. Schenckloth, 210 Neb. 144, 313 N.W.2d 438
GEOR. «655 0ho 5 ches cesey baie ee y
State v. Sims, 213 Neb. 68, 331 N.W.2d 255 (1983) .... 19
State v. Vosler, 216 Neb. 461, 345 N.W.2d 806
CROGD 35 nc yuck oc as aware ak ema eeaeeeraaes Tey es 19
State v. Williams, 226 Neb. 647, 413 N.W.2d 907
CED P+ os i cnde st adinnd eae deere en eee 4, 20
State v. Williams, 234 Neb. 890, 453 N.W.2d 399
(ROPE 6 8ednetbcd deems ahew eek eee weee een 5, 19, 20
Strickland v. Washington, 466 U.S. 668
Ln Perrin paps we hap ean Le 6, 15, 16, 17, 20, 21
Tyson v. Washington County, 78 Neb. 211, 110
A a Ey erry Manny 12
VanSickle v. Shanahan, 511 P.2d 223 (1973).......... 13
Williams v. Dahm, 963 F.2d 216 (8th Cir. 1992),
cert. denied, __ U-S. __, 113 S. Ct. 260, 123 L.
Ss SE BPG a oy aksedbnudscuedey sear ks taeeet cae’ 3, 19
vi
TABLE OF AUTHORITIES CITED - Continued
Page
CONSTITUTIONAL PROVISIONS
The Constitution of the United States, Article IV,
Ee owe iws che coblesin belnthaeleeee 2, 10
Constitution of the State of Nebraska, Article II,
es Se. 6s 6sskbbs chee sbbe bee 2, 9, 11, 14
Constitution of the State of Nebraska, Article III,
De Fo. ac cvceenesueess4chesena Cree 2, 9, 10
STATUTES AND RULES
BAGS ol OB +. Ser ym Mr ere a= 1
Neb. Rev. Stat. § 28-304 (1989).............. 2, 3, 19, 21
Bieb. Rev. State & FORE CMP so cioskscecwevsewcasaves 3
Neb. Rev. Stat. & ZO-SOGL (IGG son cccccsccssrescceass 5
OTHER AUTHORITIES
Deborah Jones Merritt, The Guarantee Clause and
State Autonomy: Federalism For a Third Cen-
tury, 88 Colum. L. Rev. 1, 23 (19GB). ........000%0: 11
Thomas A. Smith, The Rule of Law and the States:
A New Interpretation of the Guarantee Clause,
93 ‘Vole LJ. Gee CROs + ideo cee eneeaeeeeeie ea 12
Thomas C. Berg, The Guarantee of Republican
Government: Proposals For Judicial Review, 54
U. ‘Chi, L. Rew 2a, Sab Gib aces encadsdeuavess 12
es
The 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.
é
OPINIONS BELOW
The 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
(i)
The opinion in question was filed May 5, 1995. (App.
1).
(ii)
Rehearing was denied June 1, 1995. (App. 18).
(iii)
The jurisdiction of this Court to review the judgment
in question is invoked pursuant to 28 U.S.C. § 1257.
S
CONSTITUTIONAL AND STATUTOR
PROVISIONS APPLICABLE
Question 1
The United States shall guarantee to every State
in this Union a Republican Form of Govern-
ment.
The Cowstitution 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. § 28-294 (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.
+
tat
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.
1 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.
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 separate 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, __ USS.
__ 113 S.Ct. 260, 121 L.Ed.2d 191 (hereinafter “Williams
IIT’).
E. Williams obtains relief
His federal habeas action having failed to obtain him
relief, Williams next 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 Nebraska 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 (..lay 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 Supreme Court to have
violated the Sixth Amendment in failing to do so. Yet no
other attorney practicing criminal law in the State of
3 “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 effec-
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.
This 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.
This 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.
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.
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 I, Section 1.
It has long been understood in Nebraska that the power
to define crimes within this state rests solely with the Legis-
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
v. Schenckloth, 210 Neb. 144, 313 N.W.2d 438, 441 (1981); State
v. Pettit, 233 Neb. 436, 451, 445 N.W.2d 890 (1989).
10
The relevant clauses of Nebraska’s constitution have
not changed in any respect relevant to this question dur-
ing this century.
The members of the Nebraska Legislature are elected
and thus directly responsible to the citizen’s of this state.
Constitution of the State of Nebraska, Art. III, Section 5. The
members of the Nebraska Supreme Court, by contrast, are
not elected. Constitution of the State of Nebraska, Art. V,
Section 21.
Il. THE GUARANTEE CLAUSE
A. The clause
The Guarantee Clause provides:
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.
B. The guarantee
The 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
11
government. ...°” State v. Brian, 84 Neb. 30, 36, 120 N.W.
916 (1909).
While a “republican form of government” may have
certain variations, such as Nebraska’s selection of a one-
house legislative body, widespread agreement exists
among scholars and jurists about the core meaning of
republican government. “[T]he distinguishing feature ‘of
a republican form of government’ is the right of the
people to choose their own officers for governmental
administration, and pass their own laws.” Duncan v.
McCall, 139 U.S. 449, 461, 11 S.Ct. 573 (1891) (emphasis
added). Accord, Harris v. Shanahan, 387 P.2d 771, 789 (Kan.
1963). Here we believe the citizens of the State of
Nebraska to be aggrieved because the Judicial Branch of
state government, created to be insulated from the peo-
ple, has now usurped a power - the definition of criminal
behavior —- which the citizens of Nebraska have speci-
fically reserved in their state constitution exclusively to
their elected representatives in the Legislative Branch of
state government. Constitution of the State of Nebraska,
Art. II, Section 1.
“Since at least the eighteenth century, political
thinkers have stressed that a republican government is
one in which the people control their rulers.” Deborah
Jones Merritt, The Guarantee Clause and State Autonomy:
Federalism For a Third Century, 88 Colum.L.Rev. 1, 23
(1988). See also Harris, 387 P.2d at 789.
A necessary corollary of this fundamental principal is
that state governmental entities must comply with the
strictures of their state constitutions and laws. Otherwise,
12
the guarantee of a government in which the people gov-
ern could be effectively voided by the failure or refusal of
state officials to follow the direction of the people as
expressed in their respective state constitutions. See
Thomas A. Smith, The Rule of Law and the States: A New
Interpretation of the Guarantee Clause, 93 Yale L.J. 561
(1984). “The guarantee clause should be read as securing
the ‘rule of law’ in the states. Such an interpretation
would require that each state obey its own constitution
and statutes, or change those laws by legally valid
means.” Id. at 565.
If the Legislative or Executive Branches of state gov-
ernment violate the state constitution the principal safe-
guard and remedy is found in the state courts. However,
“li]f a state court has clearly misread or refused to
enforce the state constitution or laws, the parties
involved have not received the protection due them
under the state law, and therefore, the guarantee clause
has been violated.” Id. at 579. See also Thomas C. Berg, The
Guarantee of Republican Government: Proposals For Judicial
Review, 54 U.Chi.L.Rev. 208, 235 (1987) (“The Guarantee
Clause should be the basis for enforcing the nondelega-
tion principle against the states.”).
The incapacity of .. . the judiciary to execute a
power which is essentially and merely a legisla-
tive power . . . [and] the separation and inde-
pendence of distinct departments of govern-
ment, is fundamental to the very existence of
constitutional government as established in the
United States.
Tyson v. Washington County, 78 Neb. 211, 215, 110 N.W.
634 (1907). (quoting Norwalk Street R. Co.’s Appeal, 69
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
federal 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-
aration 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, is 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).
14
Unlike the situation in People of City of Thornton and
In re Interrogatories, the people of Nebraska have not
authorized the actions of the Nebraska Supreme Court in
this situation; in fact, they have specifically — through
their state constitution — sought to prohibit such action.
See People of City of Thornton, 556 P.2d at 1220. They have
clearly delegated the authority to define the elements of
criminal offenses to their elected Legislature and sought
to prohibit, through the separation of powers clause of
their state constitution, Judicial Branch encroachment
upon that power. Constitution of the State of Nebraska,
Art. II, Section 1.
The failure of a state’s highest court to follow a clear
Legislative definition of the behavior the Legislature
chooses to deem criminal, and the injection by that court
of an additional element for which it simply has a prefer-
ence, directly violates the Guarantee Clause by encroach-
ing on the Nebraska citizens’ right under our federal
constitution to have the laws under which they live
enacted by their elected representatives.
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 COUNSEL
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 has
found an ineffective assistance of counsel violation of the
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-
applicable state statutes.
More importantly, however, this counsel is further
faulted for failing to do what every other defense counsel
in the State of Nebraska was also failing to do between
January 1979 and January 1994, that is failing to conceive
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 fac-
tual situation. Such behavior is not a violation of Strick-
land v. Washington, 466 U.S. 668 (1984).
16
I. WILLIAMS WAS DECIDED UNDER A FEDERAL
CONSTITUTIONAL STANDARD
We note at the outset that there should be no confu-
sion that Williams was granted relief based upon the
Nebraska Supreme Court’s perception that there exists
here a federal constitutional violation. “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... ”
Williams IV, 531 N.W.2d at 227. (App. 8).
II. THE STATE COURT’S STRICKLAND ANALYSIS
As noted above, Nebraska has adopted the Strickland
v. Washington two-pronged test for ineffective assistance
of counsel. See State v. Robinson, 218 Neb. 156, 352 N.W.2d
879 (1984). In Williams IV the majority opinion correctly
states the applicable test as follows:
[T]he standard for determining the propriety of
the claim is [1] whether the attorney, in repre-
senting the accused, performed as least as well
as a lawyer with ordinary training and skill in
the criminal law in the area. [2] 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 inac-
tions.
Williams IV, Id. at 937, 531 N.W.2d at 227. (App. 8). It is in
its analysis of this first element of the Strickland test
where the majority of a sharply divided Nebraska
Supreme Court falls short.
17
The test of an attorney’s performance under the Sixth
Amendment and Strickland is a “peer” standard: How do
the efforts of this counsel compare to those of his contem-
poraries of the criminal defense bar at that place and
time?
The majority opinion’s protestations to the contrary,
Williams’ counsel has been found to have violated Strick-
land because he did not, in 1986, anticipate the Nebraska
Supreme Court's injection of an additional, non-legisla-
tive element into the definition of the crime of second
degree murder in 1994.
A. The majority opinion’s line of cases
The first prong of the Strickland test must here be
addressed within the factual framework of the Nebraska
Supreme Court’s injection of malice as an additional,
non-legislative element of the offense of second degree
murder.
The majority opinion concludes that in 1986 Wil-
liams’ trial counsel should have been aware of the fact
that the Nebraska Legislature’s 1979 repeal of malice as
an element of the crime of second degree murder was
somehow ineffective. In support of this proposition the
majority opinion offers a list of 15 Nebraska cases> upon
which, it believes, “effective” counsel would have relied
in 1986. Let us review the “evidence” offered by the
majority opinion.
° Williams IV, 531 N.W.2d at 228. (App. 10-11).
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 III,
although they would surely have been the peers of Williams’
trial attorney and represented the standard of practice by
20
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
Strickland analysis to arrive at the contrary result.
If 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
failing to challenge the statute or jury instructions drafted
in.compliance with the statutory language.
There exists a historical reason for this uniform lack
of 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.W.2d 762,
768 (1989); State v. Douglas, 222 Neb. 833, 388 N.W.2d 801
(1986); Kinnan v. State, 86 Neb. 234, 125 N.W. 594 (1910).
Based upon that premise the Nebraska Supreme
Court had also adhered for nearly a century to the propo-
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 (1906)
(emphasis added); State v. Bowen, 244 Neb. 204, 505
N.W.2d 682 (1993).
We are aware of only two attorneys in the entire
history of Nebraska law who even publicly suggested
that Neb. Rev. Stat. § 28-304 (1989) was somehow infirm
prior to this court’s 1994 “plain error” opinion in Myers.
They sat then and they sit now as members of the
Nebraska Supreme Court. They were a minority. Now
they sit with the Williams majority. See State v. Pettit, 233
Neb. 436, 445 N.W.2d 890 (1989) Fahrnbruch, J., and
White, J., dissenting. For Strickland “peer” analysis pur-
poses, those two voices carry no weight.
First, these two attorneys first published their theory
that a malice-less second degree murder statute was
somehow infirm three years after Williams’ trial. Second,
these two attorneys were not the Strickland, tria}-practi-
tioner-peers of Williams’ counsel. Third, when offered in
1989, the suggestion that § 28-304 (1989) required judicial
amendment was soundly rejected by the Nebraska
Supreme Court.
Against this historical backdrop, how can Williams’
1986 trial counsel be found to have violated Strickland?
Not one practicing attorney in the State of Nebraska
22
forwarded the Myers argument on behalf of a criminal
defendant before Williams’ 1986 trial. Furthermore, the
law of Nebraska had been clear for nearly a century that
a crime charged and a jury instructed in the language of
the statute defining the crime was legally sufficient.
There is absolutely no evidence of “deficient perfor-
mance” here, the first element of the Strickland test sim-
ply cannot be met, no Sixth Amendment violation has
been established, and the majority opinion of the
Nebraska Supreme Court on these facts does a great
disservice to the rulings of this Court under the Sixth
Amendment.
CONCLUSION
The citizens of the State of Nebraska pray that their
petition for a writ of certiorari be granted. The public
safety of these citizens teeters in the balance against the
retrial and possible release of approximately 130 admit-
ted or convicted killers.
A.
A bare majority of the members of the Nebraska
Supreme Court have taken it upon themselves not only to
judge but to legislate for the citizens of Nebraska, by
whom they are not elected and to whom they are not
accountable. Contrary to the Nebraska constitution and
nearly a century of Nebraska law, this judicial majority
has chosen to ignore the power of Nebraska’s Legislature
to define crimes in this state and, if not stopped, has
23
launched Nebraska into an era of common law crimes
_ specifically prohibited by the Nebraska Constitution.
The citizens of the State of Nebraska have a right, not
only under their state constitution, but under our federal
constitution, to have the laws under which they live
enacted by individuals the citizens elect to that power.
That is the role of the Guarantee Clause. A role not often
deemed necessary to exercise in our “modern” times, but
a role vitally necessary to the citizens of Nebraska now.
To whom do the citizens of Nebraska turn for relief from
the actions of their state’s highest court? This Court
appears to be their last resort.
The whole beauty of and theory behind our checks-
and-balances system of constitutional government is that
any governmental power must be checked. Unchecked
power in any branch of government is the antithesis of
what we stand for in this country. Yet unfortunately an
unchecked exercise of governmental power by a majority
of the Nebraska Supreme Court is what we face here. The
citizens of Nebraska pray for relief.
B.
Beyond our Guarantee Clause concerns, the Sixth
Amendment analysis of the Nebraska Supreme Court
majority in this case departs factually and legally from
anything anticipated by Strickland and the cases which
follow. Great damage to the appropriate application of
the Sixth Amendment by the Nebraska courts will be
suffered if the perceived errors of this case are not cor-
rected.
24
CG
In the end, this case will resolve itself - as apparently
do all issues in government - upon questions of power:
Who has it and for what end will it be exercised? We ask
the Court to exercise its power to guarantee to the citi-
zens of the State of Nebraska their rights under their state
and our federal constitutions.
Respectfully submitted,
By Don SrTenserc, #14023
Attorney General
J. Kirk Brown, #10456
Counsel of Record
Assistant Attorney General
2115 State Capitol
Lincoln, NE 68509-8920
Tel: (402) 471-2682
App. 1
Nebraska Advance Sheets
STATE v. WILLIAMS
Cite as 247 Neb. 931
STATE OF NEBRASKA, APPELLEE, V. RONALD E. WILLIAMS,
APPELLANT.
wae
Filed May 5, 1995. No. S-94-542.
Appeal from the District Court for Douglas County:
James A. Buck.ey, Judge. Reversed and remanded with
direction.
Ronald E. Williams, pro se.
Don Stenberg, Attorney General, and Kimberly A.
Klein for appellee.
Hastincs, C.J., Wuite, CAPORALE, FAHRNBRUCH, LAN-
PHIER, WRIGHT, and CONNOLLY, JJ.
PeR CurRIAM.
Ronald E. Williams, through a postconviction relief
motion, asked the district court for Douglas County for a
new trial in regard to his second degree murder convic-
tion. That court denied Williams’ request, and he
appealed.
We find that the postconviction trial court erred
when it failed to grant Williams postconviction relief.
ASSIGNMENTS OF ERROR
In his brief, Williams, in substance, claims the post-
conviction court committed four errors. To dispose of this
appeal, we need discuss only two of the issues raised by
the assigned errors: (1) whether the court at Williams’
App. 2
original trial erred when it failed to include in its instruc-
tion to the jury that “malice” is a material element of
second degree murder, and (2) whether Williams was
denied effective assistance of counsel when his trial coun-
sel did not object to the original trial court’s omission in
its jury instructions of “malice” as a material element of
second degree murder.
FACTS
On October 6, 1986, a jury found Williams guilty of
second degree murder and use of a firearm to commit a
felony in the April 13, 1986, death of Eric Holmes. Wil-
liams was sentenced to 20 years’ imprisonment for the
second degree murder charge and 3 years’ imprisonment
on the firearm charge, the sentences to run consecutively.
This court detailed the facts surrounding Holmes’ death
in State v. Williams, 226 Neb. 647, 413 N.W.2d 907 (1987),
and held that the State presented sufficient evidence to
support the conviction.
On July 12, 1988, Williams, acting pro se, filed a
motion to vacate and set aside his conviction for second
degree murder because of ineffective assistance of trial
counsel. The district court appointed counsel, held an
evidentiary hearing, and denied the motion. On appeal,
we held that Williams failed to establish a basis for post-
conviction relief, and we affirmed the judgment of the
district court. State v. Williams, 234 Neb. 890, 453 N.W.2d
399 (1990). Thereafter, Williams filed a petition for a writ
of habeas corpus in the U.S. District Court for the District
of Nebraska, alleging that there was insufficient evidence
to support his conviction and that he had had ineffective
App. 3
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-
cient to support Williams’ conviction and that he had
failed to establish that the alleged errors by his counsel
prejudiced his defense. Williams v. Dahm, 963 F.2d 216
(8th Cir. 1992), cert. denied __ U.S. __, 113 S. Ct. 260, 121
L. Ed. 2d 191.
Williams, at his jury trial and on his direct appeal to
this court, was represented by the Douglas County public
defender’s office. In his postconviction relief motion, Wil-
liams had appointed counsel. He also had appointed
counsel in his federal court proceedings in the Eighth
Circuit Court of Appeals. None of Williams’ counsel in
any 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
App. 4
of second degree murder. Williams also alleged that he
received ineffective assistance of counsel in violation of
Neb. Const. art. I, § 11, and the Sixth Amendment to the
U.S. Constitution because his counsel failed to object to
the trial court’s omission of malice as an element of
second degree murder in its instructions to the jury. Wil-
liams requested an evidentiary hearing and moved for
appointment of counsel.
The district court denied Williams’ request for an
evidentiary hearing and overruled his April 4, 1994,
motion for postconviction relief. The second postconvic-
tion relief court held that Williams procedurally
defaulted by not raising the issue of the jury instruction
in his direct appeal or in his previous postconviction
motion. The district court then proceeded to address the
merits of the motion. The court acknowledged that the
jury instructions did not include malice as an element of
second degree murder. The court, contrary to the hold-
ings of this court, then held that the trial court acted
appropriately in omitting malice as an element of second
degree murder.
In his assignments of error, Williams claims that the
second postconviction district court erred in failing to
find that (1) the original trial court improperly instructed
the jury by omitting malice as a material element of
second degree murder, and (2) Williams received ineffec-
tive assistance of trial counsel.
Initially, we note that the district court, in its denial
of Williams’ postconviction motion, was most critical of
this court’s reasoning and holdings in State v. Myers, 244
Neb. 905, 510 N.W.2d 58 (1994), and its progeny: State v.
App. 5
Franklin, 241 Neb. 579, 489 N.W.2d 552 (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); and State v. Rowe, 214 Neb. 685,
335 N.W.2d 309 (1983), which continued to hold that
malice is a material element of second degree murder. We
take this opportunity to remind lower court judges that if
the facts are the same as those involved in a holding of
this court in a similar case, it is not only their duty but
also their obligation to follow the law as has been
announced by the Nebraska Supreme Court.
As previously stated, Williams’ counsel did not chal-
lenge the erroneous jury instruction in his original
motion for postconviction relief. Ordinarily, an appellate
court will not entertain a successive motion for postcon-
viction relief unless the motion affirmately shows on its
face that the basis relied upon for relief was not available
at the time the movant filed the prior motion. See, State v.
Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994); State v.
Luna, 230 Neb. 966, 434 N.W.2d 526 (1989). However, an
appellate court is compelled to accept jurisdiction when
the sentence entered by the trial court is invalid due to
plain error in the proceedings. See State v. Rolling, 218
Neb. 51, 352 N.W.2d 175 (1984). An appellate court
always reserves the right to note plain error of such a
nature that to leave it uncorrected would cause a miscar-
riage of justice or result in damage to the integrity, repu-
tation, or fairness of the judicial process. State v. Secret,
246 Neb. 1002, 524 N.W.2d 551 (1994).
App. 6
A criminal defendant seeking postconviction relief
has the burden of establishing a basis for such relief, and
the findings of the district court will not be disturbed
unless clearly erroneous. State v. Barrientos, 245 Neb. 226,
512 N.W.2d 144 (1994). Furthermore, a criminal defendant
in a postconviction proceeding has the burden of alleging
and proving that a claimed error is prejudicial. See State
v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994).
A defendant moving for postconviction relief must
allege facts which, if proved, constitute a denial or viola-
tion of his or her rights under the Nebraska or U.S.
Constitution. State v. Sims, 244 Neb. 771, 509 N.W.2d 6
(1993).
The record presented in this appeal does not contain
the jury instructions. However, the second postconviction
district court found that the instructions had, in fact,
failed to include malice as an element of second degree
murder. Moreover, when cases are interwoven and inter-
dependent and a controversy has already been consid-
ered and determined in a prior proceeding involving one
of the parties now before the court, the court has the right
to examine its own records and take judicial notice of its
own proceedings and judgment in the prior action. Goeke
v. National Farms, Inc., 245 Neb. 262, 512 N.W.2d 626
(1994); State v. Meis, 233 Neb. 355, 445 N.W.2d 610 (1989),
overruled on other grounds, State v. Stewart, 242 Neb. 712,
496 N.W.2d 524 (1993). Thus, we take judicial notice of
the record in Williams’ direct appeal to this court.
The record from Williams’ direct appeal shows that
the State charge Williams with murder in the first degree
and use of a firearm to commit a felony. Among the
App. 7
instructions given to the jury was instruction No. 5. It
was a “step” instruction directing the jury to find Wil-
liams guilty or not guilty of first degree murder, and if it
found that he was not guilty of first degree murder, then
to make a finding regarding second degree murder or, if
necessary, manslaughter. As to second degree murder, the
instruction read:
The material elements which the State must
prove by evidence beyond a reasonable doubt in
order to convict the defendant of the crime of
murder in the second degree are:
1. That defendant killed Eric Holmes;
2. That defendant did so intentionally but
without premeditation;
3. That defendant did so on or about April
13, 1986;
4. That defendant did so in Douglas
County, Nebraska; and
5. That defendant’s actions were not justi-
fied as set out in Instruction No. 10.
The State has the burden of providing
beyond a reasonable doubt each and every one
of the foregoing material elements of the crime
of murder in the second degree necessary for
conviction.
The court further emphasized the distinctions between
first degree murder, second degree murder, and man-
slaughter in jury instruction No. 7, which read, in rele-
vant part: “A person commits murder in the second
degree if he causes the death of a person intentionally,
but without premeditation.”
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 perfor-
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.
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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 degree 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, oe
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.
Wricut, 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. I 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
App. 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,
App. 16
434 N.W.2d 526 (1989). Williams cannot now claim inef-
fective assistance of counsel at trial, on direct appeal, or
during the first postconviction proceeding. He had differ-
ent counsel for the first postconviction proceeding, and
the basis for the relief was available to him at his first
postconviction proceeding.
Nor can Williams now argue that his counsel for the
first postconviction appeal was ineffective for failing to
raise the omission of malice from the jury instructions.
One requesting postconviction relief cannot claim consti-
tutionally ineffective assistance of counsel as a result of
an attorney’s service in a postconviction proceeding. See
State v. Stewart, supra. In Coleman v. Thompson, 501 U.S.
722, 752, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991), the U.S.
Supreme Court held that because there is no constitu-
tional right to an attorney in state postconviction pro-
ceedings, “a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.”
The Nebraska Constitution’s provision for assistance of
counsel in a criminal case is no broader than its counter-
part in the federal Constitution. State v. Stewart, supra.
The majority does not explain why Williams could
not have raised the issue of ineffective assistance of coun-
sel regarding the omission of malice from the jury
instructions at the time of his first postconviction pro-
ceeding. “ ‘[A] defendant is entitled to bring a second
proceeding for postconviction relief only if the grounds
relied upon did not exist at the time of the filing of the
first motion.’ ” Id. at 718, 496 N.W.2d at 528. If, as the
majority states, malice has continuously been an essential
element of second degree murder, the grounds for relief
App. 17
existed at the time of William’s first motion for postcon-
viction relief. A motion for postconviction relief cannot
be used to secure review of issues which were or could
have been litigated on direct appeal, no matter how those
issues may be phrased or rephrased. State v. Stewart,
supra. Nor can those issues be raised in an appeal con-
cerning a second motion for postconviction relief.
Therefore, I dissent from the opinion of the majority
because I believe that Williams has no right to postcon-
viction relief. As we stated in the first postconviction
proceeding, the evidence against Williams was more than
sufficient 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,
234 Neb. 890, 453 N.W.2d 399 (1990). I would affirm the
district court’s denial of Williams’ request for postconvic-
tion relief.
Hastincs, C.J., and CONNOLLY, J., join in this dissent.
App. 18
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
June 1, 1995
J. Kirk Brown
ATTORNEY GENERAL’S OFFICE
2115 State Capitol
Lincoln, NE 68509
IN CASE OF: S-94-0542, State v. Ronald E. Williams
Appellee/ Motion for Rehearing & Brt filed 05/15/95
has been reviewed by the court and the following order
entered: Motion of appellee for rehearing overruled.
Respectfully,
CLERK OF THE SUPREME
COURT AND COURT OF APPEALS
App. 19
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
June 1, 1995
J. Kirk Brown
ATTORNEY GENERAL'S OFFICE
2115 State Capitol
Lincoln, NE 68509
IN CASE OF: S-94-0542, State v. Ronald E. Williams
Appe Mot to Stay Mandate filed 05/23/95 has been
reviewed by the court and the following order entered:
Overruled.
Respectfully,
CLERK OF THE SUPREME
COURT AND COURT OF APPEALS
App. 20
LEGISLATIVE BILL 38
Passed over the Governor’s veto June 1, 1977
Introduced by Judiciary Committee, Luedtke,
28, Chmn.; DeCamp, 40; Chambers, 11; Barnett,
26; Schmit, 23
AN ACT to adopt the Nebraska Criminal Code;
to provide an operative date; to provide sever-
ability; to provide duties; and to repeal Chapter
28, Reissue Revised Statutes of Nebraska, 1943,
and amendments thereto, except sections
28-589.03, 28-5,103 to 28-5,106, 28-833 to 28-844,
28-1020 to 28-1031, 28-1043 to 28-1046, and
28-1108 to 28-1110, and articles 14, 15, and 16,
Reissue Revised Statutes of Nebraska, 1943, and
sections 28-476.01, 28-476.02, and 28-4,135.01,
Revised Statutes Supplement, 1976.
* * +
Sec. 19. (1) A person commits murder in the second
degree if he causes the death of a person intentionally,
but without premeditation.
(2) Murder in the second degree is a Class IB felony.
App. 21
IN THE DISTRICT COURT OF
DOUGLAS COUNTY, NEBRASKA
THE STATE OF NEBRASKA, ) Docket 119 Page 297
Plaintiff,
ORDER
VS.
RONALD E. WILLIAMS,
Defendant.
The defendant has filed a motion for post conviction
relief. Defendant’s motion and the files and records of the
case show to the satisfaction of the Court that the defen-
dant is entitled to no relief and, therefore, that no eviden-
__tiary hearing need be held.
Defendant was found-guilty by a jury of the crime of
second degree murder and was subsequently adjudged
convicted of such crime and was sentenced to a term of
20 years imprisonment on November 21, 1986.
Defendant asserts as his only assignments of error
that: (1) The Court neither included nor defined “malice”
as 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
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, __ 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,
“purposely” and “maliciously” were, under the prior
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
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
App. 28
import of written law. See State v. Douglas, 222
Neb. 833, 388 N.W.2d 801 (1986).
5. It is a fundamental principle for statu-
tory construction that a penal statute is to be
strictly construed. State v. 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 US.
814, 94 S.Ct. 1262 (1974).
7. 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 necessary
element is without merit.
App. 29
WHEREFORE, IT IS ORDERED, that defendant’s
motion for relief under the Nebraska Post Conviction Act
be and the same is hereby overruled.
Dated this 11th day of May, 1994.
/s/ James A. Buckley
Judge
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