State v. White

Gerrard, J.,

dissenting.

I dissent from the result reached by the majority for the reasons set forth in my dissenting opinion in State v. Ryan, ante p. 218, 543 N.W.2d 128 (1996), Justice Connolly’s dissenting opinion in State v. Ryan, supra, and Justice Wright’s dissenting opinions in State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995), cert. denied __ U.S. _, 116 S. Ct. 563, 133 L. Ed. 2d 488; State v. Eggers, 247 Neb. 989, 531 N.W.2d 231 (1995); and State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995).

I write separately because the majority is departing from a part of its previous rationale in second degree murder jurisprudence. The majority concludes in this case that the trial court erred by not specifically instructing the jury that “malice” is an element of second degree murder and that this error is a structural one not amenable to a harmless error analysis. In arriving at these conclusions, the majority discusses (1) a concept of “protective intent,” not found in our justification statutes, and (2) introduces a harmless error analysis for second degree murder cases based solely on the Constitution of Nebraska. I disagree with the holding and the expanded rationale of this case.

JURY INSTRUCTIONS

The majority holds that the instructions given failed to adequately convey to the jury that malice was a material element of second degree murder.

In my opinion, even if malice is a judicially supplied element of second degree murder, the instructions given in this case, when read as a whole, adequately convey to the jury the very definition of malice in conjunction with the crime of second *391degree murder. Malice is defined as that condition of mind which is manifested by intentionally doing a wrongful act without just cause or excuse. State v. Ryan, supra.

Criminal Intent.

In this case, instruction No. 9 informed the jurors that they must find Calvin J. White acted with the requisite criminal intent when they were told:

Intent 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 the defendant and from the facts and circumstances surrounding his conduct. But before that intent can be inferred from such circumstantial evidence alone, it must be of such character as to exclude every reasonable conclusion except that defendant had the required intent. . . . It is for you to determine from all the facts and circumstances in evidence whether or not the defendant committed the acts complained of and whether at such time he had the criminal intent required by [the] Instruction [for first or second degree murder],

(Emphasis supplied.)

Thus, the jury was instructed that only a finding of criminal intent would support a guilty verdict and that they must exclude every other reasonable conclusion, except that White acted with criminal intent. Accordingly, when the jury convicted White of second degree murder, it necessarily found, beyond a reasonable doubt, White acted with criminal intent, and only criminal intent, when he intentionally caused the death of Patricia Cool.

Lack of Justification or Excuse.

In Nebraska, the use of deadly force in self-defense is a statutorily defined affirmative defense. Neb. Rev. Stat. § 28-1409(4) (Reissue 1989) mandates that “[t]he use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat . ...” In addition, this court has held that in order to successfully assert the claim of self-defense, one must have both a reasonable and good faith *392belief in the necessity of using deadly force. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

Instruction No. 5 in this case informed the jury that a material element of second degree murder was that White did not kill in self-defense and that the State had the burden of proving the lack of self-defense, beyond a reasonable doubt. Instruction No. 10 told the jurors that in order for White to act in self-defense, he must

reasonably [believe] that his use of deadly force was immediately necessary to protect him against death or serious bodily harm ....
The fact that [White] may have been wrong in estimating the danger does not matter so long as there was a reasonable basis for what he believed and he acted reasonably under the circumstances as they existed at the time[.]

Thus, these instructions, when read as a whole, correctly state the law, are not misleading, and adequately cover the issues, as the instructions tell the jury it must find, beyond a reasonable doubt, White subjectively believed that the use of deadly force in self-defense was immediately necessary and that this subjective, good faith belief was reasonable. See State v. Lowe, 248 Neb. 215, 533 N.W.2d 99 (1995). Accordingly, when the jury convicted White of second degree murder, it necessarily concluded either that White did not subjectively believe that the use of deadly force in self-defense was immediately necessary or that he was unreasonable in his belief, or both.

The majority asserts that there are circumstances when “[t]he absence of self-defense may coexist with the absence of malice.” It is suggested that when one acts in self-defense “with a protective intent” rather than with “a criminal intent devoid of justification or excuse,” such person does not act with malice and cannot be convicted of second degree murder. I disagree.

There are times when a killer claims a subjective honest belief that his actions were necessary for his safety (“protective intent”), even though, on an objective appraisal by a judge or a *393jury, the circumstances are found to be otherwise. In Nebraska, such a mistaken subjective belief that results in the intentional killing of another human being is not justified by statute and, under the law of this state, is murder. See, State v. Thompson, supra; State v. Stueben, 240 Neb. 170, 481 N.W.2d 178 (1992).

An intentional killing is either justified, as defined by statute, or it is murder, as defined by statute. See, Neb. Rev. Stat. §§ 28-1406 through 28-1416 (Reissue 1989); Neb. Rev. Stat. §§ 28-303 and 28-304 (Reissue 1989). There are no in-between crimes, nor are there any subjective, in-between justifications for an intentional killing. See State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994). The principle which underlies these rules is that human life should not be made to depend upon conditions so unreliable and hazardous as the bare belief of any person that he or she is in danger of death or bodily harm. State v. Thompson, supra; State v. Stueben, supra.

Therefore, an unreasonable, albeit subjective, good faith belief in the necessity of using deadly force does not negate the existence of “malice,” as that term is defined, in Nebraska. The jury was correctly instructed regarding the elements of second degree murder and White’s statutory claim of self-defense.

HARMLESS ERROR ANALYSIS

The majority, for the first time, conducts a harmless error analysis in a second degree murder case under the Constitution of Nebraska and does not reach the question of whether such an analysis is consistent with cases under the federal Constitution. For the reasons delineated in my dissent in State v. Ryan, ante p. 218, 543 N.W.2d 128 (1996), the majority’s harmless error analysis under the Constitution of Nebraska is not consistent with the U.S. Supreme Court’s harmless error analysis under the federal Constitution. The U.S. Supreme Court’s harmless error analysis, having been developed and refined over 29 years since Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), is consistent and persuasive, and I would not depart from it.

The majority found that the error in this case is a structural one, not amenable to a harmless error analysis. Quoting extensively, but “only for the purpose of guidance,” from *394Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), the majority concludes that since the jury was not told malice is an element of second degree murder,

there is here no object on which a harmless error analysis can operate. The most that an appellate court could say would be that a jury would surely have found White guilty beyond a reasonable doubt, not that the jury’s actual finding of guilt beyond a reasonable doubt would surely not have been different absent the constitutional error.

However, Sullivan must be read in the context of a “deficient reasonable-doubt instruction,” and a unanimous U.S. Supreme Court went on to guide us that

[ijnsofar as the possibility of harmless-error review is concerned, the jury-instruction error in this case is quite different from the jury-instruction error of erecting a presumption regarding an element of the offense. A mandatory presumption . . . 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.” [Citation omitted.] 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.” [Citations omitted.] 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.

113 S. Ct. at 2082.

The majority’s bare conclusion that the error in this case is a “structural” one, not amenable to a harmless error analysis, is not consistent with Supreme Court precedent under the federal Constitution and is not persuasive. The instant case clearly falls into the “trial error” category of cases and is amenable to a harmless error analysis under the Supreme Court’s interpretation of the federal Constitution. See, Sullivan v. Louisiana, supra; Rose v. Clark, 478 U.S. 570, 106 S. Ct. *3953101, 92 L. Ed. 2d 460 (1986).

In conducting a harmless error analysis under the federal Constitution, concerning the presumption of malice in this case, we must determine whether there are facts that are so closely related to the ultimate fact to be presumed (malice) that no rational jury could find those facts without also finding that ultimate fact. Sullivan v. Louisiana, supra. If so, then making those findings is functionally equivalent to finding the element required to be presumed (malice). Id.

In this case, the ultimate fact to be presumed is malice, the intentional doing of a wrongful act without just cause or excuse. Clearly, the jury found several facts, beyond a reasonable doubt, which make those findings the functional equivalent to a finding of malice.

First, the jury found, beyond a reasonable doubt, White intentionally caused the death of Cool; that is, White acted solely with criminal intent as defined in instruction No. 9. White engaged in the intentional doing of a wrongful act.

Second, the jury found, beyond a reasonable doubt, White did not act in self-defense. The effect of this finding was to say either that White did not subjectively believe that the use of deadly force in self-defense was immediately necessary, or that he was unreasonable in his belief of the need to use deadly force, or both.

Third, no evidence appears in the record which would allow a rational jury to even consider the existence of some other justification or excuse other than self-defense.

Thus, the jury found the existence of all the necessary facts to support the conclusion, beyond a reasonable doubt, White was without just cause or excuse when he intentionally killed Cool. These findings are so closely related to the ultimate fact, the existence of malice, that the findings are the functional equivalent of a finding of malice. Accordingly, the State was not relieved of its burden to prove beyond a reasonable doubt every element of the crime charged, and White received a full and fair jury trial regarding each element of second degree murder.

The essence of a harmless error inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict *396actually rendered in this trial was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). It can surely be stated that beyond a reasonable doubt, this verdict was unattributable to the purported instruction error when every element of malice was found against White, notwithstanding the fact that the word “malice” was not included in the instructions as a “material element” of the crime of second degree murder.

Wright and Connolly, JJ., join in this dissent.