Lead Opinion
Dеnnis Ryan filed a postconviction relief motion in the district court for Richardson County asking that his conviction and sentence for second degree murder be vacated. He claimed that in its instructions, the trial court had erred in failing to include “malice” as an essential element of the crime for which he was convicted.
Following a hearing, the district court denied Ryan the relief he prayed for and Ryan timely appealed to this court from that judgment.
We find that, as a matter of law, the jury instructions given in Ryan’s trial violated Ryan’s rights under the U.S. and Nebraska Constitutions and that his conviction and sentence are void. As a result, we reverse the postconviction .relief judgment of the district court and remand the cause to that court with direction to vacate its postconviction relief judgment and grant Ryan a new trial.
STANDARD OF REVIEW
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. Barfoot,
In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. State v. Derry,
The facts underlying this case are fully set forth in Ryan’s direct appeal. See State v. Ryan,
The jury was told in instruction No. 7 the material elements of first degree murder, second degree murder, and manslaughter. Section II of instruction No. 7 told the jury:
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 Dennis Ryan, on or about April 30, 1985, did kill James Thimm, either alone or while aiding and abetting another;
(2) That he did so in Richardson County, Nebraska;
(3) That the defendant did so intentionally, but without premeditation.
The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material elements of the crime of murder in the second degree in order to convict the defendant of the crime of murder in the second degree.
If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements of this Section II is true, it is your duty to find the defendant guilty of the crime of murder in the second degree done purposely and maliciously but without deliberation and premeditation, and you shall so indicate by your verdict, unless you find that the defendant is not responsible by reason of insanity as set forth in Instruction No. 7A .
If, on the other hand, you find that the State has failed to prove beyond a reasonable doubt any one or more of the material elements in Section I and that the State has failed to prove any one or more of the material elements in Section n, it is your duty to find the defendant not guilty of the crime of murder in the second degree. You shall*222 then proceed to consider the lesser included offense of manslaughter set out in Section in below.
(Emphasis supplied.)
Through his trial counsel, Ryan filed a direct appeal of his conviction to this court. At that time, the giving of jury instruction No. 7 was not assigned as error. Rather, Ryan assigned that the trial court erred in (1) failing to grant his motion to waive jurisdiction to the juvenile court, (2) receiving into evidence various photographs, (3) excluding certain testimony, (4) sustaining a codefendant’s objections to the introduction of two depositions, (5) refusing to give certain requested jury instructions, and (6) imposing an excessive sentence. Upon review of the assigned errors, this court affirmed Ryan’s conviction. State v. Ryan, supra.
On June 29, 1990, Ryan, represented by different counsel, filed a second amended motion for postconviction relief. Again, the giving of instruction No. 7 was not assigned as error. Rather, Ryan claimed that his conviction was void or voidable because (1) the State “prepped” its witnesses, (2) the court dictated to defense counsel how to prepare defense strategy, (3) the court denied Ryan’s motion to transfer his case to juvenile court, (4) Ryan’s defense was not allowed to fully cross-examine the State’s witnesses, (5) the trial court allowed Ryan to be tried jointly with his father, (6) Ryan’s sentence was excessive, and (7) Ryan had ineffective assistance of trial counsel. The district court for Richardson County denied that motion after a hearing. Ryan did not appeal the denial of his second amended motion for postсonviction relief.
On September 8, 1994, Ryan, represented by other, new counsel, filed in the district court for Richardson County a postconviction relief motion seeking vacation of his conviction and sentence. In that motion, Ryan focused solely on jury instruction No. 7 and alleged, in substance, that (1) the trial court improperly instructed the jury as to the elements required to be proved by the State in order to convict Ryan of second degree murder, (2) his court-appointed trial counsel was ineffective for. failing to object to the trial court’s instruction on second degree murder, and (3) his counsel on direct appeal was ineffective in failing to assign as error the trial court’s erroneous
After a hearing, the district court denied Ryan’s postconviction relief motion, and Ryan timely appealed to this court.
ASSIGNMENT OF ERROR
Ryan contends that the district court erred in denying his motion to vacate his conviction and sentence.
ANALYSIS
Malice as Element of Second Degree Murder
We have held that it is a fundamental principle of statutory construction that penal statutes are to be strictly constmed, and it is not for the courts to supply missing words or sentences to make clear that which is indefinite, or to supply that which is not there. State v. Salyers,
Without the element of malice or mens rea, Neb. Rev. Stat. § 28-304(1) (Reissue 1989), the second degree murder statute of which Ryan was convicted, would be of doubtful validity and perhaps unconstitutional. Through acceptable statutory construction principles, we have held and continue to hold that under § 28-304(1), malice is a necessary element of second degree murder. By such statutory construction, there can be no question of § 28-304(l)’s validity.
We first addressed the elements of second degree murder under the current criminal code in State v. Clermont,
Section 28-304(1) provides: “A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation.” In State v. Clermont . . . this court said: “The essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously.” We also said in State v. Clermont . . . “The elements of malice and intent concern the state of mind of the slayer. Malice, in its legal sense, denotes that condition of mind which is manifested by intentionally doing a wrongful act without*225 just cause or excuse . . . ."
(Emphasis supplied.) State v. Rowe,
Proper statutory construction of § 28-304(1) mandates that malice remain an element of second degree murder. As a general rule, statutes will not be understood as effecting any change in the common law beyond what is clearly indicated. State v. Eagle Thunder,
In Morissette v. United States, the defendant was charged with stealing and converting property of thе United States in violation of 18 U.S.C. § 641, which statute is silent as to felonious intent. The trial court, over Morissette’s objection, did not instruct the jury on felonious intent. The U.S. Court of Appeals for the Sixth Circuit held that the trial court did not err in refusing to instruct the jury on intent, because the statutory offense did not require an element of criminal intent. The U.S. Supreme Court noted that the mental element of intent was longstanding and well defined in common law, and thus, the Court reversed the lower court and held that mere omission from § 641 of any mention of intent will not be constmed as eliminating that element from the crimes denounced. The Court described the government’s request for a strict statutory construction without reading the element of intent as follows:
The Government asks us by a feat of constmction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative.
Legislative silence сannot do away with such a basic premise of what constitutes second degree murder. Whether a criminal intent or guilty knowledge is an essential element of a statutory offense is to be determined as a matter of construction from the language of the act, in connection with its manifest purpose and design. Thus, a statute may be construed to include a criminal intent element absent from its face. State v. Conner,
Due process of law requires that criminal statutes be clear and that ascertainable standards of guilt be defined with sufficient definiteness to inform those subject to the statute what conduct will render them liable to punishment. State v. Saulsbury,
In regard to § 28-304(1), we have held that when the express language of the statute does not make the elements of the crime clear, the express language of the statute is insufficient. See State v. Grimes,
A statute is unconstitutionally vague or overbroad if it proscribes legal as well as illegal conduct. See Papachristou v. City of Jacksonville,
For example, law enforcement officials forced to kill in the line of duty cause the death of another person intentionally. The
If malice is not read into § 28-304(1), individuals who commit legal acts, though punishable under the statute, would have to defend themselves through an affirmative defense of justification. See Neb. Rev. Stat. § 28-1416 (Reissue 1989). This results in a shifting of the State’s burden of proving every element of the crime charged in a criminal case. As a practical matter, the defendant would be forced to forego his or her presumption of innocence and be required to produce evidence that he or she in causing the death of a person acted lawfully. See State v. Grimes, supra. A person charged with a crime is entitled to a presumption of innocence and may insist that the State prove his guilt beyond a reasonable doubt. See Herrera v. Collins,
When the rules of proper statutory construction are applied to § 28-304(1), that statute, though silent as to the longstanding material element of malice, must be read to include malice as an element of second degree murder in order to preserve a defendant’s right to his or her presumption of innocence.
As previously stated, the material elements of the crime of murder in the second degree are that the killing be done purposely and maliciously. These material elements are not new. Rather, they are over a century old and have always been the
Jury Instruction’s Omission of Malice as Material Element
In the case at bar, the trial court instructed the jury that the material elements of murder in the second degree are that the killing be done intentionally, but without premeditation. Such a jury instruction does not correctly instruct the jury of the material elements of second degree murder because it omits that the killing must be done maliciously.
The trial court also instructed the jury that if the State proved beyond a reasonable doubt that Ryan killed intentionally, but without premeditation, then the jury had a duty to find Ryan guilty of second degree murder done purposely and maliciously. Although the trial court recognized that malice is an essential element of second degree murder, its instruction did not require the jury to find whether Ryan killed with malice. Rather, the instruction commanded that if the jury determined that Ryan killed intentionally, but without premeditation, then the jury had a duty to find that he acted purposely and maliciously. As worded, the jury instruction requires the jury to presume malice if it finds that the killing was done intentionally.
Also as worded, the jury instruction does not require the State to prove each material element of second degree murder beyond a reasonable doubt. By ordering the jury to presume that Ryan acted with malice, a material element of the crime of second degree murder, the instruction violated Ryan’s 14th Amendment rights to due process. See, Francis v. Franklin, 471
We have previously held that jury instructions which set forth only the statutory elements of a crime are insufficient when they do not set forth all the essential elements of the crime. State v. Williams, supra. We have also previously held that a jury instruction that fails to include malice as a material element of murder in the second degree is plain error and prejudicial. See, State v. Williams, supra; State v. Grimes,
Procedural Default
The State contends that Ryan’s motion must be overruled because it is procedurally barred due to his prior direct appeal and his previous unsuccessful motion for postconviction relief which he did not appeal. As previously stated, however, the omission of malice as а material element to the crime of second degree murder is plain error and prejudicial. A judge’s instructions to the jury as to the law and how the evidence should be assessed are crucial to a fair trial. They should guide the jury’s deliberations and are not mere technicalities of our legal system. Errors in such matters may go to the heart of the question of guilt. See Houston v. Dutton,
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. State v. Williams,
Harmless Error Analysis
The State, apparently laying aside that the burden is upon it to prove every element of the crime charged, argues that the erroneous jury instruction was harmless error because Ryan did not produce evidence to show a lack of malice. Ryan, however, did present evidence at trial that he was under “mind control” during the crime and “ ‘was not acting on his own free will.’ ” State v. Ryan,
The Due Process Clause of the 14th Amendment protects the accused against conviction еxcept upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Francis v. Franklin, supra.
In Sandstrom v. Montana,
[A] conclusive presumption in this case would “conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every*231 element of the crime,” and would “invade [the] factfinding function” which in a criminal case the law assigns solely to the jury. The instruction announced to David Sandstrom’s jury may well have had exactly these consequences. Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and “ordinary consequences” of defendant’s action), Sandstrom’s jurors could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove “beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged,” [citation omitted], and defendant was deprived of his constitutional rights ....
The Sixth Amendment provides in criminal prosecutions, such as in Ryan’s case, the defendant’s right to an impartial jury. This right to trial by jury is fundamental to the American scheme of justice and includes as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of guilt. See Sparf and Hansen v. United States,
In Rose v. Clark,
“ All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable . . . doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.’ ”
The facts in Rose v. Clark, however, are significantly distinguishable from the case at bar. In Rose v. Clark,
“The question of whether the alleged killing was done with malice is for you to determine from the entire case, and you should look to all of the facts and circumstances developed by the evidence to determine whether the State has . . . proven beyond a reasonable doubt the existence of malice. If you have a reasonable doubt as to whether the alleged killing was done with malice, then the Defendant cannot be guilty of murder in the second degree and you must acquit him of that offense.”
The Court determined that, based upon the record as a whole, the jury instruction to presume malice was not the kind of error that automatically required reversal of an otherwise valid conviction. Rose v. Clark, supra. The jury in Ryan’s trial was not instructed that the State had to prove beyond a reasonable doubt that Ryan acted with malice. This is significant when considering that the Court further stated in Rose v. Clark that
In the trial of Ryan, the jury was not instructed that malice is a material element of the crime of second degree murder. The Ryan jury was never instructed to determine whether malice existed. The jury was never instructed to deliberate or consider whether Ryan acted with malice. The jury was instructed only that if it found that Ryan, either alone or while aiding and abetting another, did kill James Thimm on or about April 30, 1985, in Richardson County and did so intentionally, but without premeditation, then it had a duty to find Ryan guilty of murder in the second degree done purposely and maliciously. Clearly, the instruction ordered the jury to presume malice without considering it to be a material element of the crime. We presume that juries follow their instructions. See Richardson v. Marsh,
An erroneous presumption on a disputed element of the crime renders irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon the evidence. If the jury may have failed to consider evidence of intent, a reviewing court cannot hold that the error did not contribute to the verdict. The fact that the reviewing court may view the evidence of intent as overwhelming is simply irrelevant. Connecticut v. Johnson,
We do note that the court instructed the Ryan jury as to the affirmative defense of insanity in jury instruction No. 7A. The jury was instructed to find Ryan not responsible by reason of insanity if Ryan proved by a preponderance of the evidence that he did not have the mental capacity to understand the nature and quality of his act, or to distinguish between right and wrong with respect to it, or to know that such act was wrong and deserved punishment.
In Patterson v. New York,
We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.
(Emphasis supplied.)
In so holding, the Court distinguished Patterson from Mullaney v. Wilbur,
Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter.
The Patterson Court found that Mullaney was distinguishable because in Mullaney the defendant was required to prove an element of the crime, whereas in Patterson, extreme emotional disturbance was not a part of the definition of the crime.
Thus, while a defendant may be required to prove by a preponderance of the evidence an affirmative defense, a defendant may not be required to assume the burden of disproving the existence of an essential element of a crime.
Accordingly, the State may not constitutionally rely upon the affirmative defense of insanity as a means of addressing the material element of malice in a trial for second degree murder because it relieves the State from proving beyond a reasonable doubt the defendant’s guilt of each and every essential element of the crime, particularly malice.
Due process in a trial of a criminal case prohibits a jury instruction which contradicts the presumption of a defendant’s innocence or shifts to a defendant the burden of persuasion on an element of the crime charged. See, State v. Parks,
A basic foundation of our criminal justice system is that the accused is presumed innocent and the State must prove beyond a reasonable doubt each element of the crime charged. The record reflects that Ryan, charged with a horrific crime, was not accorded the presumption of innocence. The State was not required to prove beyond a reasonable doubt each element of the crime with which Ryan was convicted and for which a life sentence was imposed. We cannot ignore or excuse a trial error that strikes at the foundation of our criminal justice system and which was prejudicial to Ryan.
As a result of the prejudicial jury instructions, Ryan’s trial was rendered fundamentally unfair in violation of the U.S. and Nebraska Constitutions. We must and do reverse the postconviction relief judgment of the district court and remand the cause to that court with direction to vacate its postconviction relief judgment and grant Ryan a new trial on the seсond degree murder charge.
Reversed and remanded with direction.
Concurrence Opinion
concurring.
Although I vote for the majority opinion, I, nevertheless, write separately to address some issues raised by the dissenting opinions.
The dissenters correctly contend that there are only statutory crimes. Even so, the elements of statutory crimes are interpreted by common law. One dissenter acknowledges this by stating: “Because there are no common-law crimes in this state, we must resort to only common-law definitions where general terms are used to designate crime.”
The majority does not chart new ground by finding a common-law element in a statutory crime. We have required the State to prove beyond a reasonable doubt the common-law element of “without consent” in order to convict a defendant of the crime of robbery under Neb. Rev. Stat. § 28-414 (Reissue 1964). See State v. McClarity,
As to second degree murder, this court has long recognized “malice” as a material element of the crime. Thus, we did not add an element by “judicial fiat.” Rather, the majority has held
The dissenters look to the State of Washington’s Supreme Court for guidance on how Nebraska’s second degree murder should be construed. Assuming the opinion is relevant to Nebraska law, State v. McCullum, 98 Wash. 2d. 484,
It is true that State v. McCullum mentions that the former Washington first degree murder statute which provided that “a killing was murder or manslaughter, unless it was ‘excusable or justifiable,’ ” was amended to omit the “ ‘excusable or justifiable’ ” language.
Nebraska does not, however, follow Washington statutоry law. In Nebraska, intent is acting willfully or purposely and not accidentally or involuntarily. See State v. Coca,
One of the dissenters contends that Ryan’s jury “was instructed that they must find that Ryan acted with the requisite criminal intent as a material element of the crime.” I do not agree that such instruction overcomes the omission of malice as an essential element of second degree murder. Jury instruction No. 11, referred to by the dissenter, does not define “criminal intent. ” Rather, that instruction instructs the jury to determine whether Ryan had the requisite “criminal intent” as required by jury instruction No. 7. Jury instruction No. 7 instructed the jury that among the material elements that the State must prove beyond a reasonable doubt is that Ryan did kill “intentionally, but without premeditation.” Jury instruction No. 10 defined “intentionally” as “willfully or purposely and not accidentally or involuntary. ” As stated earlier, that definition of “intentionally” does not resolve the ambiguities left by the silent omission of the element of malice in the printed language of § 28-304.
The majority opinion states that “[i]f malice is not read into § 28-304(1), individuals who commit legal acts, though punishable under the statute, would have to defend themselves through an affirmative defense of justification. ” The dissenters claim that the public officials need merely raise that they are statutorily protected. The dissenters also argue thаt it is not constitutionally infirm to require defendants to bear a burden of production. The dissenters’ analysis, however, places upon the defendant the burden of adducing evidence to prove the absence of a material element of a crime. To ignore the statute’s overbreadth by requiring the defendant to raise, for the first time before the jury, the absence of a material element of a crime as an affirmative defense would not accord the defendant the presumption of innocence which is a basic foundation of our criminal justice system. It must be remembered that the burden is upon the State to prove beyond a reasonable doubt each essential element of a crime and that the burden never shifts. See Patterson v. New York,
Finally, a dissenter argues that justice is not served by the majority’s holding. The evidence indeed may be overwhelming that Ryan acted with malice. However, a jury must make that determination, not a trial court, unless a jury is waived. In a case such as Ryan’s, an appellate court can only review the case to assure that a defendant was given all the rights to which that defendant was entitled at trial. In Henderson v. Morgan,
It would be well to recall the words of Justice Oliver Wendell Holmes, Jr., who, in referring to the U.S. Supreme Court, stated that “[t]his is a court of law . . . not a court of justice.” The majority opinion is in tune with the U.S. and Nebraska Constitutions in requiring the State to prove to a jury, beyond a
One of the fundamental reasons that courts exist is to protect a citizen from the arbitrary acts of government. Every defendant, regardless of the brutality of his or her criminal act, is entitled to the presumption of innocence until a jury finds the defendant guilty of each and every element of the crime charged. Therefore, any holding, other than the holding reached by the majority opinion, would deprive Ryan of a fair and fall criminal jury trial, which is guaranteed to all defendants under the U.S. and Nebraska Constitutions.
Dissenting Opinion
dissenting.
Because this court holds, as a matter of law, that the jury instructions given in Ryan’s trial violated his rights under the U.S. and Nebraska Constitutions, I am compelled to dissent and write separately.
It is obvious that the Legislature, in revising the Nebraska Criminal Code in 1977, intended to remove malice, the lack of just cause or excuse, as an element of second degree murder. As a corollary to that revision, the Legislature had previously set forth a procedure in the criminal code whereby a defendant could raise justification or excuse as an affirmative defense in cases where the facts warrant such a defense. For the reasons that follow, I do not agree with the majority’s assertion that the legislative act, which affirmatively removed malice as an element of second degree murder, creates “the absurd consequence of an overbroad murder statute making certain legal acts illegal. ”
Furthermore, requiring a defendant to raise the issue of justification or excuse as defined by our statutes, Neb. Rev. Stat. §§ 28-1406 through 28-1416 (Reissue 1989), does not unconstitutionally shift the State’s burden of proving every
Finally, even if Ryan were due a jury instruction explicitly stating that the jury needed to find Ryan acted with malice, on the facts in this case, not receiving such an instruction was clearly harmless error.
I. MALICE AS ELEMENT OF SECOND DEGREE MURDER
The majority opinion asserts that without the element of malice or mens rea, the second degree murder statute of which Ryan was convicted would be of doubtful validity and, perhaps, unconstitutional. I take exception with this underlying proposition, set forth by the majority, for several reasons.
1. Statutory Construction
Neb. Rev. Stat. § 28-304(1) (Reissue 1989) defines second degree murder as “causing] the death of a person intentionally, but without premeditation.” Malice is the intentional doing of a wrongful act without just cause or excuse. State v. Dean,
The meaning of the word “malice” added to the statutory text of § 28-304(1) adds nothing to the statutory definition of second degree murder which would not exist through the use of well-established principles of statutory construction. Although a penal statute must be strictly construed, it is to be given a sensible construction, and general terms are to be limited in their construction and application so as to avoid injustice, oppression, or an absurd consequence. State v. Joubert,
(a) Presumption That Legislature Knows the Law
There are no common-law crimes in Nebraska. State v. Schaaf,
The Legislature is presumed to have known the preexisting law, and in enacting an amendatory statute, we are compelled to conclude that the language was intentionally changed for the purpose of effecting a change in the law itself. State v. Suhr,
(b) Revisions to Criminal Code
Nebraska, like many other states, made significant revisions to its criminal code beginning in the early 1970’s. In 1972, L.B. 8, a proposed complete revision of the Nebraska Criminal Code, first came before the Judiciary Committee. In 1977, after much study and debate, the Legislature passed 1977 Neb. Laws, L.B. 38, the framework for what is now the Nebraska Criminal Code. The only change effected by the 1977 criminal code revision on our homicide statutes was to remove from our former second degree murder statute the requirement that second degree murder is a killing done “purposely and maliciously, but without deliberation and premeditation,” replacing it with the requirement that murder in the second degree is causing the death of another person “intentionally, but without premeditation.” Compare Neb. Rev. Stat. § 28-402 (Reissue 1975) with § 28-304. In contrast, the 1977 revision of the criminal code left undisturbed the requirement that malice is an element of first degree murder. Compare Neb. Rev. Stat. § 28-401 (Reissue- 1975) with Neb. Rev. Stat. § 28-303 (Reissue 1989). In addition, the revised manslaughter statute continued to specifically require that manslaughter is a killing done without malice. Compare Neb. Rev. Stat. § 28-403 (Reissue 1975) with Neb. Rev. Stat. § 28-305 (Reissue 1989).
Thus, it is clear that the Legislature, in the 1977 revision of the criminal code, contrary to the majority’s assertion, was not
In 1969, the Legislature enacted Nebraska’s first justification statute, the “Nebraska Self-Defense Act,” Neb. Rev. Stat. § 29-114 (Cum. Supp. 1969). State v. Goodseal,
The effect of this legislation was to change self-defense and other justifications or excuses for the use of deadly force from common-law defenses to statutorily defined affirmative defenses. See § 28-1416(1). The nature of an affirmative defense is such that the defendant has the initial burden of going forward with evidence of the defense. When the defendant has produced sufficient evidence to raise the defense, the issue is then one which the State must disprove beyond a reasonable doubt. See, State v. Thompson,
As a practical matter, the evidence necessary to raise an affirmative defense may be adduced either by the defendant’s witnesses or in the State’s case in chief without the necessity of the defendant presenting evidence. A defendant is not required to plead and give notice of ah affirmative defense of justification or self-defense. State v. Clayburn,
Instructive on this issue is State v. McCullum,
The court in McCullum reasoned that when the legislature removed the language, “unless it was ‘excusable or justifiable’ ” from Washington’s former murder statute, it did not relieve the state of its burden to prove, beyond a reasonable doubt, that a killing was without justification or excuse, when at the same time the legislature made self-defense an affirmative defense without allocating a burden of proof to the defendant. Id. at 491,
As a matter of statutory construction, the Washington court presumed that the legislature did not engage in a meaningless
[T]he Legislature merely relieved the State of the time-consuming and unnecessary task of alleging and proving negative propositions which may not be involved in each case. Once the issue of self-defense is properly raised, however, the absence of self-defеnse becomes another element of the offense which the State must prove beyond a reasonable doubt.
Id. at 493-94,
I find the reasoning of the Washington Supreme Court to be persuasive in the instant case. It seems clear that the Nebraska Legislature, in amending our second degree murder statute, intended to remove the words “purposely” and “maliciously” and, instead, define second degree murder as intentionally (as that word must be understood within the context of the criminal code) causing the death of another, without premeditation.
Moreover, the Legislature, by making justification or excuse for the use of force a statutory defense, intended to treat any intentional killing as unlawful unless the defendant, by any means possible, raised the issue of justification or excuse. If any effect is to be given the legislative act of removing malice from Nebraska’s second degree murder statute, it must be that, as in Washington, the Legislature intended to relieve the prosecution of the burden of pleading and proving the lack of justification or excuse when the defendant has not first raised the issue.
(c) § 28-304(1) Is Not Unconstitutionally Overbroad
A series or collection of statutes pertaining to a certain subject matter, statutory components of acts which are in pari materia, may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of an act are consistent, harmonious, and sensible. State v. Joubert,
The majority asserts that malice must be inserted as a material element of second degree murder to avoid “the absurd
However, the mere fact that one is a public officer raises the issue of justification for the use of deadly force. Nebraska’s homicide statutes and justification for the use of force statutes must be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of our criminal code are consistent, harmonious, and sensible.
Thus, even though a public officer may intentionally, but without premeditation, take the life of another, the operation of § 28-1408, justification for the use of force in execution of a public duty, would require that, merely because an individual is a public officer, the State must prove, beyond a reasonable doubt, that such public officer was acting outside his or her duties or functions or outside the judgment or order of a competent court or tribunal. Clearly, police officers, corrections officials, members of the Nebraska Board of Pardons, and, for that matter, judges who sentence first degree murderers to death and Supreme Court justices who set execution dates, do not need malice inserted into the second degree murder statute to protect them in carrying out their public function.
It is axiomatic that a criminal code is only intended to proscribe criminal conduct. Thus, each and every statute in a criminal code ought to be construed to reach only criminal conduct, that is, conduct which is unlawful, unjustified, or inexcusable. The necessary corollary to this axiom is that when a criminal statute proscribes intentional conduct, it can only mean that the statute proscribes intentional conduct which is unlawful, unjustified, or inexcusable, in other words, intentional conduct done with a criminal intent:
This is precisely the manner in which the Legislature has directed the courts to construe the criminal code. Neb. Rev.
Furthermore, the jury in this case was instructed that it must find that Ryan acted with the requisite criminal intent as a material element of the crime, not some abstract or undefined intent. Instruction No. 11 stated, in pertinent part:
Intent or purpose is a mental process and it therefore generally remains hidden within the mind where it is conceived. ... It may, however, be inferred from the words and acts of each defendant and from the facts and circumstances surrounding his conduct. ... It is for you to determine from all of the facts and circumstances in evidence whether or not each defendant had the criminal intent or purpose required by [the] Instruction^] [concerning either first degree murder, second degree murder, or manslaughter]. If you have any reasonable doubt with respect to either, with regard to a defendant, you must find the defendant not guilty of murder in the first degree or the lesser included offense of murder in the second degree; remembering that you must consider the guilt or innocence of each defendant individually.
(Emphasis supplied.) Accordingly, contrary to the majority’s assertion, the jury was informed that it is only criminal intentional conduct which can support a guilty verdict and that if it was to find Ryan guilty, it must find the existence of criminal intent with respect to Ryan’s conduct beyond a reasonable doubt.
Thus, taken in its proper statutory context, § 28-304(1) can only mean that second degree murder is intentionally, meaning with the requisite criminal intent, but without premeditation, causing the death of another — unless such intentional act is justified or excused under §§ 28-1406 through 28-1416. It is
Furthermore, there is a practical problem if the majority’s position on overbreadth is taken to its logical conclusion. If the second degree murder statute is overbroad without judicially supplying the element of malice, then there arе many other statutes in our criminal code which may also be constitutionally suspect unless an additional “mens rea” element is judicially added to the statutory definition of those crimes.
For example, Neb. Rev. Stat. § 28-308(1) (Reissue 1989) states, “A person commits the offense of assault in the first degree if he intentionally or knowingly causes serious bodily injury to another person.” Thus, without limiting the conduct causing serious bodily injury to only that intentional or knowing conduct which maliciously (meaning without just cause or excuse) causes serious bodily injury, the statute proscribing first degree assault is potentially as overbroad as the second degree murder statute.
The first degree assault statute is just one of many statutes in the criminal code which, like second degree murder, proscribe intentional conduct that is harmful to other persons without the necessity of including malice in its statutory definition. It is my contention that when the intentional conduct criminal statutes are construed in light of § 28-102 and the justification statutes, a court is not compelled to add malice as a necessary element of such crimes in order to withstand a constitutional overbreadth challenge. To construe the intentional conduct statutes otherwise would surely lead to absurd consequences.
2. Shifting of Burden of Production Is Not Unconstitutional
The majority also asserts:
If malice is not read into § 28-304(1), individuals who commit legal acts, though punishable under the statute, would have to defend themselves through an affirmative defense of justification. . . . This results in a shifting of*250 the State’s burden of proving every element of the crime charged in a criminal case.
Contrary to the majority’s assertion, there is nothing in the plain language of our justification for the use оf force statutes which evinces a legislative intent to shift the ultimate burden of proof concerning the lack of justification or excuse away from the State. Moreover, neither the legislative history of Nebraska’s justification statutes nor our case law construing the justification statutes, supports the majority’s position that the justification statutory scheme relieves the State of its burden of proving beyond a reasonable doubt the lack of justification or excuse when raised by a defendant.
As stated previously, Nebraska’s justification for the use of force statutes is taken directly from the Model Penal Code. Comments to article 3 of the Model Penal Code state, concerning an affirmative defense, that “the prosecution can be silent on the question of justification unless and until evidence is adduced (typically by the defendant) in support of the defense.” Model Penal Code § 3.01, comment at 6 (1985).
Further support can be found in the Model Penal Code section concerning affirmative defenses in general. For defenses “denominated affirmative by the Code or another statute, or involving a matter of justification ‘peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence,’ the state’s burden does not arise unless there is some evidence supporting the defense.” Model Penal Code § 1.12, explanatory note at 187 (1985).
More importantly, several U.S. Supreme Court cases do not support the majority’s contention that requiring a defendant to raise justification as an affirmative defense is аn unconstitutional shifting of the State’s burden of proof. In Patterson v. New York,
In addition, in Martin v. Ohio,
Even Justice Lewis Powell’s dissents in Patterson and Martin clearly acknowledge that it is the burden of persuasion that the state is required to bear beyond a reasonable doubt under the holdings of In re Winship,
There is a clear constitutional distinction between casting the burden of production on an accused and casting the burden of persuasion on an accused. In discussing affirmative defenses, LaFave and Scott write:
As to the burden of production of evidence, it is uniformly held that the defendant is obliged to start matters off by putting in some evidence in support of his defense — e.g., evidence of his insanity, or of his acting in self-defense, or of one of the other affirmative defenses— unless of course the prosecution, in presenting its own side of the case, puts in some evidence of a defense, in which case the matter of defense is properly an issue though the defendant himself produces nothing further to support it. Experience shows that most people who commit crimes are sane and conscious; they are not compelled to commit them; and they are not so intoxicated that they cannot entertain the states of mind which their crimes may require. Thus it makes good sense to say that if any of these unusual features are to be injected into the case, the defendant is the one to do it; it would not be sensible to make the prosecution in all cases prove the defendant’s*252 sanity, sobriety and freedom from compulsion. . . . Nothing in Mullaney or Patterson casts any doubt upon the constitutionality of so allocating the burden of production.
1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 1.8(c) at 72 (1986).
Therefore, the fact that the State of Nebraska requires an accused to raise the issue of justification neither relieves the State of proving guilt beyond a reasonable doubt of every element of a crime, nor does the requirement force the defendant to forgo the presumption of innocence in violation of his rights under the U.S. and Nebraska Constitutions.
II. HARMLESS ERROR ANALYSIS
The jury instruction for second degree murder given in this case informed the jurors that if they find the State proved, beyond a reasonable doubt, that while in Richardson County, Ryan, either alone or while aiding and abetting another, intentionally, but without premeditation, killed Thimm, then they must find Ryan guilty of second degree murder done purposely and maliciously, but without deliberation and premeditation.
The majority asserts this instruction created a mandatory presumption requiring the jury to find Ryan acted with malice, that is, without just cause or excuse, upon finding Ryan acted intentionally, but without premeditation in killing Thimm. Thus, the majority concludes the instruction as given relieved the State of its burden to prove beyond a reasonable doubt each element of the crime charged, to wit: proof of malice, meaning proof of the lack of just cause or excuse. Moreover, the majority contends that this error was not harmless beyond a reasonable doubt because in addition to not being instructed that malice is an element of second degree murder, the jurors were also not instructed to find beyond a reasonable doubt the existence of the facts which give rise to the presumption of malice.
“Mandatory presumptions must be measured against the standards of Winship as elucidated in Sandstrom. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense.” Francis v. Franklin,
The majority’s position is that to sustain Ryan’s conviction, the State was obligated to prove, beyond a reasonable doubt, Ryan intentionally and with malice, but without premeditation, killed Thimm. The jury’s guilty verdict necessarily found the following: (1) Beyond a reasonable doubt, Ryan acted intentionally in causing Thimm’s death; (2) beyond a reasonable doubt, Ryan did not premeditate his intentional act which caused Thimm’s death; and (3) Ryan did not prove by a preponderance of the evidence that he was insane at the time he killed Thimm and was, therefore, excused. Thus, the only remaining element that a majority of this court would require the State to prove is that Ryan acted maliciously, that is, without just cause or excuse in killing Thimm.
At trial, Ryan never raised the issue of justification or excuse as a defense to his participation in the brutal killing of Thimm. Instead, Ryan chose to defend by claiming he was not guilty by reason of insanity. Ryan presented evidence at trial, in the context of an insanity defense, that he was under the mind control of his father and the religious cult at the Rulo farm and, thus, “ ‘was not acting on his own free will.’ ” State v. Ryan,
In Nebraska, for a defendant to claim insanity as a defense, he or she would necessarily assert either that he or she. does not have the capacity to understand the nature of the act alleged to
Justification was never at issue in Ryan’s case. As is true with every insanity plea, Ryan’s reliance on the insanity defense necessarily admitted the fact of the killing. The insanity defense merely acts to completely absolve a defendant of criminal culpability if he did not appreciate the wrongfulness of his conduct or that he was unable to distinguish between right or wrong. Peter Arenella, Reflections on Current Proposals to Abolish or Reform the Insanity Defense, 8 Am. J.L. & Med. 271 (1982).
Therefore, even if the jury instruction required-the jury to presume the lack of justification, this instruction did not relieve the State of its burden of proving every element of the crime. Justification, as defined by statute, was not an issue in this case. For that reason alone, the error, if any, is harmless beyond a reasonable doubt.
Further, in Rose v. Clark,
In this context, the Court found that the erroneous malice
Moreover, in Sullivan v. Louisiana,
one consisting of “trial error[s],” which “may ... be quantitatively assessed in the context of other evidence presented,” [Arizona v. Fulminante,499 U.S. 279 , 307-08,111 S. Ct. 1246 ,113 L. Ed. 2d 302 (1991)], and are amenable to harmless-error analysis; the other consisting of “structural defects,” which “affec[t] the framework within which the trial proceeds,” [499 U.S. at 310 ], and require automatic reversal. There is a “strong presumption” that any error will fall into the first of these categories.
Sullivan,
The Supreme Court clearly pointed out that a jury instruction error of erecting a presumption regarding an element of an offense falls into the first category, which is amenable to a harmless error analysis, and is quite different than an erroneous reasonable doubt instruction, which requires an automatic reversal. Sullivan v. Louisiana, supra. The Court explained:
A mandatory presumption — for example . . . violates the Fourteenth Amendment, because it may relieve the State of its burden of proving all elements of the offense. [Citations omitted.] But “[w]hen a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.” Rose v. Clark, [478 U.S. 570 , 580,106 S.Ct. 3101 , 3107,92 L.Ed.2d 460 *256 (1986)]. And when the latter facts “are so closely related to the ultimate fact to be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed.” Carella v. California,491 U.S. 263 , 271, (1989) (Scalia, L, concurring in judgment).... A reviewing court may thus be able to conclude that the presumption played no significant role in the finding of guilt beyond a reasonable doubt.
The instant case, like Rose v. Clark, supra, clearly falls into the first category of cases and is amenable to a harmless error analysis. The majority distinguished Rose from the instant case by stating that the instruction in this case did not allow the defendant to rebut the presumption of malice. However, the question is not whether the presumption of malice given in the jury instruction was rebuttable, but whether the presumption relieved the State of its duty to prove Ryan’s guilt beyond a reasonable doubt of every element of the crime charged. Clearly, the presumption of malice or, better stated, the presumption of lack of just cause in this case did not relieve the State of any burden of proof. Instead, Ryan removed the issue of justification, or whether he acted with malice, by tendering an insanity defense.
In addition, thеre were absolutely no facts in this record setting forth a possible justification defense for the torture killing of Thimm. A full rendition of the sordid facts of this case is set forth in this court’s opinion rendered as a result of Ryan’s direct appeal. See State v. Ryan,
Two days before his death, Thimm was moved to a hog confinement building and was instructed by Ryan’s father to take a goat with him and have sex with it. Thimm was given a jar for water, a hot plate, and a sleeping bag. The day before Thimm died, Ryan’s father inserted a greased shovel handle into Thimm’s rectum several times, then Ryan performed the same act. Thimm offered no resistance. Later that same day, Ryan participated in the whipping of Thimm. At this time, Thimm was spread-eagled against an auger.
The next day Ryan participated in another whipping of Thimm because the redness from the first day was gone. During this time, Thimm was undressed except for the socks he wore. Ryan, at the direction of his father, then took his turn at shooting off the fingertips on one of Thimm’s hands. The hand was propped up on a block of wood, palm up. The victim was then whipped again by Ryan. Shortly thereafter, Ryan participated in skinning one of Thimm’s legs with a razor blade and pliers. Then Ryan and another codefendant each broke one of the victim’s legs.
One of the trial witnesses, John David Andreas, testified that Ryan “ ‘thought it was kind of — it was kind of neat that he had helped kill somebody.’ ” Ryan,
The guilty verdict for Ryan clearly cannot be attributed to a purported error of instmcting a jury that it must presume the lack of just cause if it found Ryan intentionally, but without premeditation, killed Thimm. There was no evidence whatsoever concerning just cause offered by Ryan or any of the other defendants at trial. The only defense tendered by Ryan at trial was insanity. Ryan claimed he did not appreciate the wrongfulness of his conduct because of his age and the influence that his father exerted over him. The jury was properly instructed on the insanity defense, and it clearly rejected the defense that Ryan tendered at trial.
Therefore, even if there was error in the instructions in this case, “the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Emphasis in original.) See
IE. CONCLUSION
For the above reasons, I would find Nebraska’s second degree murder statute to be clear, unambiguous, and valid in all respects. In my opinion, the jury was properly instructed, and Ryan’s motion for postconviction relief was appropriately denied by the trial court.
Even if the jury was erroneously instructed to presume malice from certain predicate facts in this case, such an instruction was harmless beyond a reasonable dоubt based on a proper application of the standards set forth by the U.S. Supreme Court. Assuming that the jury should have received an instruction on malice in the instant case — what possible justification or excuse existed in this record? Rather than theorizing about absurd consequences in the abstract, this court, as an institution, need concern itself with avoiding absurd consequences in second degree murder cases that we are called upon to decide. It is difficult to conceive a more absurd consequence than the granting of a new trial for Ryan based on the facts of this case and the instructions that were given to the jury.
Dissenting Opinion
dissenting.
Once again, I dissent on the malice issue.
In reviewing the criminal code which became operative on July 1, 1978, the Legislature deliberately eliminated malice as an element of second degree murder. “In construing a penal statute, a court cannot supply language which is absent from the statutory definition for a criminal offense.” State v. Schaaf,
This reasoning is nonsensical. The general purpose of our criminal code is to forbid and prevent only conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests. See Neb. Rev. Stat. § 28-102(1) (Reissue 1989). If one follows the majority’s opinion to its logical conclusion, then a number of criminal statutes that proscribe intentional or knowing conduct, but do not include the word “malice,” could be construed similarly.
For example, our first degree false imprisonment statute, Neb. Rev. Stat. § 28-314 (Reissue 1989), would require the inclusion of the word “malice” because otherwise a police officer performing his or her duty by handcuffing a criminal suspect could be charged with false imprisonment. Likewise, our assault statutes, Neb. Rev. Stat. §§ 28-308 to 28-310 (Reissue 1989), would require malice because a police officer who causes bodily injury to a criminal suspect that physically resists arrest could be charged with assault. As one can see, the majority opinion poses the potential danger of leading to similar absurd results in other areas of our penal law.
The majority’s tortuous reasoning has created a Jabberwocky decision in which rules are subject to change without notice to the parties or the trial court. This should not be.
Dissenting Opinion
dissenting.
I reiterate my dissent as stated in State v. Grimes,
I cannot agree with any of the reasoning used by the majority to justify its conclusion that malice is an element of second