STATE OF NEBRASKA, APPELLEE, V. STEVEN REDMOND, APPELLANT.
No. S-99-1456
Supreme Court of Nebraska
August 10, 2001
631 N.W. 2d 501
On the other hand, a licensee is on the premises of another for the licensee‘s own interest or gratification. Such person is exercising the privilege solely for that person‘s own convenience and benefit and does not stand in any contractual relation with the owner of the premises. See Malolepszy v. Central Market, 143 Neb. 356, 9 N.W.2d 474 (1943). Skinner was not found to be a licensee.
I would reverse the judgment of the district court and remand the cause with directions to dismiss.
CONNOLLY, J., joins in this dissent.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.
CONNOLLY, J.
Following the fatal shooting of Mark B. Clinton—a maintenance worker at the Kimball County Courthouse—Steven Redmond was charged with first degree murder. The killing took place before our decision in State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), which held that malice was not an essential element of second degree murder and which overruled previous cases that held otherwise. While Redmond‘s case was pending, Burlison was decided. Following a bench trial, the district court made a factual finding that the State had failed to prove premeditated malice. The district court then found Redmond guilty of second degree murder. In reaching its determination, the district court discussed the effect of Burlison on its decision and determined that Burlison applied to the case.
On appeal, Redmond argues that the retroactive application of Burlison denied him due process under the 14th Amendment to the U.S. Constitution and
Redmond assigns that the district court erred in (1) failing to include malice as an element of second degree murder when the offense occurred before State v. Burlison, supra, was decided and (2) finding there was sufficient evidence to convict him of second degree murder and use of a deadly weapon to commit a felony.
BACKGROUND
On August 21, 1998, an information was filed charging Redmond with count I, murder in the first degree under
At trial, a Kimball police officer, Phillip L. Short, testified that at about 1:10 a.m. on August 5, 1998, an intoxicated Redmond was involved in an altercation with a bartender at a local bar. When the police arrived, Redmond began yelling that he wanted the Federal Bureau of Investigation (FBI) to be called and that the police in Kimball were selling drugs. As a result, Redmond was arrested and taken to the Kimball County Courthouse where the sheriff‘s office was located. While at the courthouse, Redmond requested an ambulance due to an injury to his face and past medical problems. An ambulance was called, and Redmond was taken to the hospital.
Short testified that Redmond had been behaving in a belligerent manner both before and during his arrest. While at the hospital, Redmond again became belligerent, started yelling at hospital personnel, and demanded to see Short‘s supervisor. The
Amanda Colburn Stewart, the dispatcher on duty at the sheriff‘s office, testified that at approximately 3 a.m., Redmond called the sheriff‘s office and asked for the telephone number for the FBI. Stewart testified that at approximately 5:30 a.m., a motion sensor alerted her that a person was in the lobby of the building. Through a television monitor connected to a surveillance camera, Stewart saw a man, later identified as Redmond, standing in the doorway. Stewart placed a call to the telephone in the lobby. The telephone rang three times, and then Stewart saw the door open and Clinton emerge from inside the courthouse, so she hung up the telephone.
Stewart testified that Clinton and Redmond had a short conversation and that Clinton then grabbed Redmond‘s jacket and pushed him up against the wall. For a period of time, Clinton and Redmond were then partially in the “blackout area,” an area of the lobby that could not be seen from the surveillance system. Stewart next observed Redmond‘s arms come up and saw that he had what she thought resembled a cane in his right hand. Stewart testified that Clinton then turned to his left and reached for the door with his right arm. Stewart stated that Clinton was not facing Redmond and had already turned toward the door. Stewart then realized that Redmond had a rifle instead of a cane. Stewart looked away from the monitor in order to call Short and, during that time, heard two gunshots. Stewart looked up at the monitor and could not see Clinton. Stewart observed Redmond fire a gun at the door and later observed him reach in through the glass, open the door, and go into the courthouse from the lobby. Stewart heard some shots fired inside the courthouse. Stewart then called for additional help, and Shank used the fire escape to reach the sheriff‘s office. Watching the monitor, Stewart and Shank then saw Redmond emerge in view of the camera. Stewart was unable to observe much more, and Redmond went out on the front porch and beyond the view of the cameras.
Following trial, the court found Redmond guilty on count I of second degree murder and guilty on count II of using a deadly weapon to commit a felony. In reaching this determination, the court determined that the State had not met its burden of proving premeditated malice beyond a reasonable doubt. Thus, the court found that the State had failed to prove that Redmond was guilty of first degree murder. The court then found Redmond guilty of second degree murder based on the factual finding that he intentionally shot Clinton but without premeditation. In reaching this determination, the court relied on Stewart‘s testimony and made a finding of fact that Clinton had been shot in the back, indicating that the shooting did not occur as part of the struggle between Redmond and Clinton. The court also reasoned that Redmond‘s intent was shown because, following the shooting, he fired more shots and entered the courthouse instead of tending to Clinton‘s wounds.
The district court then specifically addressed State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), stating the following:
There was talk this morning about State versus Burlison and I had dug that case out some time ago myself. It‘s my opinion what that case has done is not changed the law as the statute still reads the same as it did before. State versus Burlison just said that the Supreme Court has changed its mind about how it was going to interpret the statute and did not say that from this point forward it will be interpreted implied, rather it reversed all of its prior opinions that had misread or misinterpreted as the court now feels the second degree murder statute reads.
That being the case, the State has proved beyond a reasonable doubt that the defendant has committed an unlawful killing . . . .
STANDARD OF REVIEW
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001); State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Sanchez-Lahora, 261 Neb. 192, 622 N.W.2d 612 (2001); State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).
ANALYSIS
RETROACTIVE APPLICATION OF STATE V. BURLISON
Because Redmond killed Clinton before State v. Burlison, supra, was decided, he contends that Burlison cannot be applied to his case. Redmond argues that a retroactive application of Burlison to his case violates due process because the State failed to prove malice beyond a reasonable doubt at trial. Thus, if Burlison had not been retroactively applied to his case, under the law before Burlison, Redmond would have been convicted of manslaughter instead of second degree murder.
Since 1978,
In State v. Burlison, supra, the appellant sought postconviction relief on the basis that he pled guilty to second degree murder when the operative information failed to include the element of malice. We determined that malice is not a necessary element of second degree murder under
We did not apply our holding in Burlison in a solely prospective manner. Instead, we applied the holding of the case to the appellant and affirmed his conviction. We have also directed that the law as established in Burlison be applied to a crime that occurred before Burlison was decided. See State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999). But, Redmond contends that because a retroactive application of Burlison makes the killing of Clinton a greater crime than it was when committed, a retroactive application of Burlison denies him due process under Bouie v. City of Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964), and the recent case of Rogers v. Tennessee, 532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001).
[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as
Art. I, § 10 , of the Constitution forbids. An ex post facto law has been defined by this Court as one “that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,” or “that aggravates a crime, or makes it greater than it was, when committed.” . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. . . . If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect.
(Emphasis in original.) 378 U.S. at 353-54. The Court emphasized that the issue was whether the construction gave the petitioners fair warning that their conduct was a crime. The Court noted that the decision of the South Carolina Supreme Court had “not even the slightest support in prior South Carolina decisions,” was inconsistent with the law in other states, and was inconsistent with the plain meaning of the criminal statute. 378 U.S. at 356. So, the Court reversed, finding that the petitioners’ due process rights had been violated.
The U.S. Supreme Court clarified the holding of Bouie in Rogers v. Tennessee, supra. In Rogers, the petitioner was convicted under Tennessee‘s criminal homicide statute. Under the
On appeal to the U.S. Supreme Court, the petitioner relied on Bouie v. City of Columbia, 378 U.S. 347, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964), and argued that the Due Process and Ex Post Facto Clauses prohibited retroactive application of the judicial abolishment of the year-and-a-day rule. The Court disagreed with this contention and stated that to the extent the petitioner argued that the Due Process Clause incorporates the specific prohibitions of the Ex Post Facto Clause, he misread Bouie. The Court recognized that Bouie contained “some expansive language” that was suggestive of the broad interpretation for which the petitioner argued. Rogers v. Tennessee, 532 U.S. 451, 458, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001). The Court then determined that language in Bouie stating that the Due Process Clause operated in the same manner as the Ex Post Facto Clause was dicta. The Court stressed that retroactive judicial decisionmaking is not analyzed by reference to the Ex Post Facto Clause, but is instead analyzed in accordance with the more basic and general principle of fair warning under the Due Process Clause. The Court then stated: ”Bouie restricted due process limitations on the retroactive application of judicial interpretations of criminal statutes to those that are ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ” 532 U.S. at 461.
When examining the facts of the petitioner‘s case, the Court determined that the Tennessee Supreme Court‘s abolition of the year-and-a-day rule was not unexpected and indefensible. The Court noted that a majority of states had abolished the rule and that the rule had only a “tenuous foothold as part of the criminal
Under Rogers, the U.S. Constitution does not require that retroactive judicial decisions be analyzed with reference to the Ex Post Facto Clause. Instead, a judicial decision interpreting a statute may be applied retroactively unless the decision denies due process by being both unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.
In this case, the change of law in State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), cannot be said to be indefensible. Indefensible is defined as “incapable of being maintained as right or valid” or “incapable of being justified or excused.” Webster‘s Third New International Dictionary, Unabridged 1147 (1993). Thus, in a case such as Bouie, where a court interprets a statute in a surprising manner that has little in the way of legal support, the interpretation could not be applied retroactively. Our decision in Burlison was not such a case.
The basis of the Burlison decision was the plain language of
Furthermore, our decision in Burlison was not entirely unexpected. Although Burlison overruled a line of cases, the prior cases were not without obvious disagreement. Further, this court‘s interpretation of
Redmond contends that we should continue to apply ex post facto principles to retroactive judicial interpretations of a statute. In particular, Redmond asks that we do this under the Nebraska Constitution. We decline to do so. We hold that our interpretation of
SUFFICIENCY OF EVIDENCE FOR SECOND DEGREE MURDER
Redmond contends that the evidence was insufficient to convict him of second degree murder because there was no evidence that he intentionally shot Clinton. In particular, Redmond argues that the location of the bullet wound in Clinton‘s right shoulder blade is consistent with the theory that Clinton was shot as he was throwing a punch at Redmond and when Redmond was holding the handgun in his left hand.
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001); State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
As a factual finding, the district court concluded that Clinton was shot in the back, indicating that the shooting did not occur as part of the struggle between Redmond and Clinton. The district court also found that Redmond‘s intent was evidenced by the fact that following the shooting, he fired more shots and entered the courthouse, instead of tending to Clinton‘s wounds. We further note that the bullet wound is located on the bottom left of the right shoulder blade. Thus, the wound is closer to the center of the back than it is to the right side. Further, the evidence at trial did not clearly establish that Redmond held the weapon in his left hand. Under these circumstances, a rational trier of fact could have found the element of intent beyond a
SUFFICIENCY OF EVIDENCE FOR USE OF WEAPON TO COMMIT FELONY
Redmond next argues that the evidence was insufficient to convict him of use of a weapon to commit a felony when he was convicted of second degree murder but was charged with first degree murder.
The information stated that Redmond “did use a firearm, to commit a felony which may be prosecuted in a court of this state, to-wit: Murder in the First Degree.” We read the reference to first degree murder to be an example of a felony upon which the use of a weapon charge might be based, and not as the exclusive felony providing the basis for the charge. The information charged Redmond with use of a weapon to commit a felony. Redmond was indeed convicted of a felony. We determine that this assignment of error is without merit.
CONCLUSION
We conclude that our interpretation of
AFFIRMED.
WRIGHT, J., concurring.
Redmond assigns as error that the district court erred in failing to include malice as an element of second degree murder and in finding there was sufficient evidence to convict him of second degree murder. Neither assignment of error has any merit.
Redmond was charged with first degree murder and was convicted by the district court of second degree murder. The district court found that Redmond shot Clinton intentionally but without premeditation. Redmond could not have been convicted of manslaughter because the killing was intentional. See State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).