*1 A. Wilson, appellee, Nebraska, v. Thomas appellant. N.W.2d 925 No. S-94-877. May Wilson, A. se.
Thomas pro General, A. Klein Kimberly Don Stenberg, Attorney Fahrnbruch, Lanphier, Caporale, White, C.J., JJ. White, C.J. A. Wilson of second convicted Thomas a jury in the commission of and of of a firearm murder use
degree He sentenced to years’ imprisonment felony. to 10 years’ and 6 murder conviction second conviction, the terms to a firearm for the use of imprisonment and sentences affirmed his convictions run We consecutively. Wilson, N.W.2d 123 Wilson filed his In Court, District County in Douglas erred trial had (1) the trial court at his original contending to include malice as when it failed instructions, he was in its jury when his trial counsel of counsel denied effective assistance to the trial court’s omission of malice as an Wilson’s second considering petition, mandates, district court refused to our sua apply concluding, *2 that malice is not an element sponte, of second murder. The district court therefore denied Wilson’s for relief, and he appealed.
An
court
appellate
reserves the
to note
always
right
plain
error of such a nature that to leave it uncorrected would cause
a
miscarriage
or result in
justice
to
damage
integrity,
Williams,
reputation,
fairness of
State v.
judicial process.
931,
Secret,
ante
p.
State v.
246
1002,
Williams,
Neb.
524 N.W.2d
(1994).
551
we
Recently,
Williams,
addressed the
very
issues Wilson raises. In
also
a case
a
involving defendant’s second
petition
relief, we held that
to include the element of malice
“[f]ailure
in the
instruction
jury
on second
constitutes
940,
error.” Id. at
plain
assistance of counsel when his trial counsel failed to to object the trial court’s omission of malice as an essential element of Williams, second degree murder in its jury supra. Counsel’s failure to court’s omission in an instruction of an essential element of a crime falls standard of reasonableness and renders results of the trial both unreliable and fundamentally thereby substantively a prejudicing Id. See Strickland v. 466 U.S. Washington, S. Ct. result, Ed. 2d 674 As a Wilson is entitled to a
reversal of his murder conviction and a new trial.
Furthermore, because Wilson’s use of a firearm conviction on his conviction of an predicated underlying felony, Williams, must be reversed. See conviction also use of firearm which denied Wilson’s court’s order The district reversed, the cause is is remanded for a new trial. remanded Reversed J., dissenting. from the majority
I
opinion
respectfully
Grimes,
519 N.W.2d
in State
given
reasons
J.,
and State
(Wright,
dissenting),
Both
(1995) (Wright,
dissenting).
second motions for
and the case
bar involved
Williams
relief, and
has
relief on
granted
this court
did not
error because the
instructions
jury
grounds-
murder.
malice
an essential element of second degree
include
as
that the defendant was denied
held
of counsel because
counsel failed
effective assistance
of malice
to the trial court’s omission
as
instructions
*3
failure to
to the trial court’s omission of
that counsel’s
fell
element of the crime
objective
and rendered
of the
standard
reasonableness
result
both unreliable
fundamentally
thereby prejudicing
bar,
In the
notes
case
error for the
reasons cited in
reverses the
court,
remands the
the district
cause for
judgment
relief
ordinarily
A second motion for
will not
unless the
shows on its face
affirmatively
be entertained
motion
relief was not
at the
that
basis for the
available
requested
time the
filed the
motion.
prior
Keithley,
movant
State
(1995);