Summary
In State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994), this court held that it is the duty of the trial court in a criminal case to instruct the jury on the pertinent law of the case, whether requested to do so or not.
Summary of this case from State v. PlantOpinion
No. S-93-668.
Filed July 22, 1994.
1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. 2. ___: ___. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. 3. Search Warrants: Probable Cause. A search warrant, to be valid, must be supported by an affidavit establishing probable cause, or reasonable suspicion founded upon articulable facts. 4. ___: ___. In evaluating probable cause for the issuance of a search warrant, the magistrate must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him, including the veracity of and basis of knowledge of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. 5. Search Warrants: Probable Cause: Appeal and Error. The duty of the reviewing court is to ensure that the magistrate issuing a search warrant had a substantial basis for determining that probable cause existed. 6. Search Warrants: Affidavits. When a search warrant is obtained on the strength of an informant's information, the affidavit in support of the issuance of the search warrant must (1) set forth facts demonstrating the basis of the informant's knowledge of criminal activity and (2) establish the informant's credibility, or the informant's credibility must be established in the affidavit through a police officer's independent investigation. 7. ___: ___. An affidavit in support of the issuance of a search warrant must affirmatively set forth the circumstances from which the status of the informant can reasonably be inferred. 8. ___: ___. Among the ways in which the reliability of an informant may be established are by showing in the affidavit to obtain a search warrant that (1) the informant has given reliable information to police officers in the past, (2) the informant is a citizen informant, (3) the informant has made a statement that is against his or her penal interest, and (4) a police officer's independent investigation establishes the informant's reliability or the reliability of the information the informant has given. 9. Criminal Law: Search Warrants: Probable Cause. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search. 10. Search Warrants: Affidavits: Appeal and Error. An appellate court is restricted to consideration of the information and circumstances contained within the four corners of the affidavit underlying a search warrant. 11. Search Warrants: Evidence. Evidence which emerges after a search warrant is issued has no bearing on whether the warrant was validly issued. 12. Criminal Law: Courts: Juvenile Courts: Jurisdiction. In deciding whether to transfer proceedings to juvenile court, the court having jurisdiction over a pending criminal prosecution must carefully consider the criteria set forth in Neb. Rev. Stat. § 43-276 (Reissue 1988). 13. Trial: Expert Witnesses. The right of an indigent defendant to the appointment of an expert witness at State expense generally rests in the discretion of the trial court. 14. Courts: Juvenile Courts: Jurisdiction. The consideration of the criteria listed in Neb. Rev. Stat. § 43-276 (Reissue 1988) is a balancing test. A court need not decide all of these criteria against the juvenile before denying a motion to transfer. 15. Homicide: Intent. The essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously. 16. Trial: Judges: Jury Instructions: Appeal and Error. It is the duty of the trial judge to instruct the jury on the pertinent law of the case, whether requested to do so or not, and an instruction or instructions which by the omission of certain elements have the effect of withdrawing from the jury an essential issue or element in the case are prejudicially erroneous. 17. Criminal Law: Due Process: Statutes. Due process requires that criminal statutes be clear and definite and that a crime and ascertainable standards of guilt be defined with sufficient definiteness to inform those subject to the statute what conduct will render them liable to punishment. 18. Criminal Law: Due Process: Jury Instructions: Proof. A jury instruction which shifts the burden of proof to a defendant on any essential element of a crime charged violates a defendant's due process right to a fair trial. 19. Criminal Law: Indictments and Informations. Generally, to charge the defendant with the commission of a criminal offense, an information or complaint must allege each statutorily essential element of the crime charged, expressed in the words of the statute or in language equivalent to the statutory terms defining the crime charged. 20. Indictments and Informations. The purpose of an information is to inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also so that he may be able to plead the judgment rendered thereon as a bar to later prosecution for the same offense. 21. Indictments and Informations: Statutes. If a statute does not set forth all the elements necessary to constitute the offense intended to be punished, an indictment simply following the words of the statute is not sufficient, and, in such a case, the indictment must allege with certainty all of the particular elements necessary to bring the case within the intent and meaning of the statute.
Appeal from the District Court for Douglas County: PAUL J. HICKMAN, Judge. Reversed and remanded for a new trial.
Julianne M. Dunn and Daniel J. Neppl for appellant.
Don Stenberg, Attorney General, and Mark D. Starr for appellee.
HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.
Following a jury trial in the Douglas County District Court, Craig T. Grimes was convicted of second degree murder and use of a firearm to commit a felony for the September 7, 1992, shooting death of James P. Kirby. He appealed his convictions of murder in the second degree and use of a firearm to commit a felony to the Nebraska Court of Appeals. Under our authority to regulate the caseloads of the appellate courts of this state, we removed the matter to this court. Grimes challenges the district court's rulings on a motion to suppress and on a motion for a psychological examination. He also contends that the district court abused its discretion in sentencing him. Finally, Grimes contends that the district court committed reversible error in instructing the jury. He asserts the trial court erred by failing to instruct the jury that malice is an element of the crime of second degree murder. We agree and, accordingly, reverse the judgment of the district court and remand this cause for a new trial.
BACKGROUND
Grimes was charged by information with second degree murder and use of a firearm to commit a felony for the September 7, 1992, shooting death of Kirby. Prior to trial, Grimes, then age 16, filed a motion to have his case transferred to the separate juvenile court. Additionally, asserting that an examination 18 months earlier revealed depression and an adjustment disorder, Grimes moved the court to order a psychological exam. The trial court denied both motions. Grimes also filed a motion to suppress the evidence obtained by police during a search of his home. This motion was also denied. Grimes was tried before a jury in the Douglas County District Court. He was convicted of both second degree murder and use of a firearm to commit a felony. Grimes was sentenced to life in prison for second degree murder and to a consecutive sentence of 6 to 10 years for use of a firearm in the commission of a felony.
ASSIGNMENTS OF ERROR
Restated, Grimes assigns that the trial court erred in (1) failing to grant his motion to suppress, (2) failing to grant his motion for a psychological examination, (3) failing to instruct the jury that malice was an element of second degree murder, and (4) in sentencing him to life in prison.
STANDARD OF REVIEW
A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Dyer 245 Neb. 385, 513 N.W.2d 316 (1994). In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. Id.
MOTION TO SUPPRESS
Grimes asserts that the trial court erred in failing to suppress the evidence police obtained during a search of his home. Grimes contends the evidence should have been suppressed, since it was obtained during an unlawful search. He argues that the search was unlawful because the affidavit in support of the request for a search warrant failed to demonstrate that the hearsay information contained therein came from a reliable source.
The affidavit executed by the police to obtain the search warrant states in pertinent part:
[T]he following are the grounds for the issuance of a search warrant for said property and the reasons for the Affiant's belief, to-wit: (1) On Monday, September 7, 1992, at 1746 hours, cruiser officers with the Omaha Police Division responded to a disturbance/shooting radio call at 1702 North 32nd St., Omaha, NE.
The victim of this shooting incident which took place on the fore-mentioned address, was identified as James P. Kirby, a white male, Date of Birth, 10-05-1965, who resided at 1702 North 32nd St., Omaha, NE.
The victim, James P. Kirby, died shortly after the shooting incident as a result of sustaining a single gun shot wound to the chest area.
(2) During the course of the follow-up investigation, a spent round was recovered from the sidewalk area in front of 1702 North 32nd St., Omaha, NE, where the victim, James P. Kirby, collapsed after being shot. A subsequent preliminary examination of the spent bullet indicated an approximate size of 44 caliber. Also during the course of the follow-up investigation, affiant officers, Jadlowksi, #991, and Comstock, #860, were actively involved in developing information from numerous witnesses which indicated a chrome plated 44 caliber, long barrelled revolver was used in this homicide and possible identification of suspects involved.
(3) One of the named suspects was identified as Doss, Ronnie L. a black male, DOB-12/09/74, residing at 4223 Binney St., Omaha, NE, currently a student at Benson High School of Omaha, NE. Doss was located at Benson High School, Omaha, NE, and transported to 505 So. 15th St. Room #413, Omaha Police Headquarters on September 9, 1992, at 1515 hours, and at that location was interviewed by affiant officers, Jadlowksi, #991, and Comstock, #860, and during this interview he stated that he personally observed the suspect as Grimes, Craig, a black male, DOB-09/05/66, residing at 3915 North 43rd St., Omaha, NE, discharge what he described as 44 caliber long barrelled revolver, silver in color, with dark wood grained grips, at victim, Kirby, James. After observing the firearm discharge, witness, Doss, stated he observed the victim, Kirby, James, fall to the ground.
(4) After observing Kirby fall to the ground, Doss stated that he and Grimes, Craig with other individuals ran to Doss's vehicle and left the area. After driving around for a period of time, for approximately 2 hours, Doss stated, that he dropped Grimes off at his residence located at 3915 North 43rd St., and at this time Grimes still had in his possession the afore-mentioned 44 caliber long-barrelled revolver, silver, with wood grain grips.
(5) During the interview with Doss, he stated to affiant officers, that he had observed Grimes, Craig in possession of the afore-mentioned weapon. And two or three of these times, he was observed in possession of the weapon at 3915 North 43rd St. where Grimes, Craig resides with his father Grimes, Arthur.
A search warrant, to be valid, must be supported by an affidavit establishing probable cause, or reasonable suspicion founded upon articulable facts. State v. Morrison, 243 Neb. 469, 500 N.W.2d 547 (1993). In evaluating probable cause for the issuance of a search warrant, the magistrate must make a practical, commonsense decision whether, given the totality of the circumstances set forth in the affidavit before him, including the veracity of and basis of knowledge of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993); State v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991). The duty of the reviewing court is to ensure that the issuing magistrate had a substantial basis for determining that probable cause existed. Id.
When a search warrant is obtained on the strength of an informant's information, the affidavit in support of the issuance of the search warrant must (1) set forth facts demonstrating the basis of the informant's knowledge of criminal activity and (2) establish the informant's credibility, or the informant's credibility must be established in the affidavit through a police officer's independent investigation. State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992). The affidavit must affirmatively set forth the circumstances from which the status of the informant can reasonably be inferred. Id.
Among the ways in which the reliability of an informant may be established are by showing in the affidavit to obtain a search warrant that (1) the informant has given reliable information to police officers in the past, (2) the informant is a citizen informant, (3) the informant has made a statement that is against his or her penal interest, and (4) a police officer's independent investigation establishes the informant's reliability or the reliability of the information the informant has given. Id.
Grimes concedes that Doss was an informant who made a statement against his own penal interest. However, Grimes argues that without independent corroboration, Doss' statements were not sufficiently reliable. In State v. Sneed and Smith, 231 Neb. 424, 436 N.W.2d 211 (1989), we addressed whether an affidavit for a search warrant containing admissions of criminal conduct established the reliability of the informant. In that case, a burglary suspect admitted to police his involvement in four burglaries. The suspect told police he had exchanged the stolen items for drugs at a particular residence. After interviewing the suspect, the investigating officer independently determined that one defendant resided at the given residence and had an extensive record for theft and receiving stolen property. The officer also used burglary reports to identify the items to be searched for. We held that the affidavit containing the information compiled by the officer, including the burglary suspect's statements, was sufficient to establish probable cause.
Here, some of the statements made by the informant were also bolstered by information independently established by the police. The affidavit stated that the police recovered a slug at the scene of the shooting which was the approximate size of a .44-caliber slug. Also corroborative of Doss's statement was the affiant officer's statement that "numerous witnesses . . . indicated a chrome plated 44 caliber, long barrelled revolver was used in this homicide." Contrary to Grimes' contentions, the affidavit was supported by independent investigation which corroborates Doss' statements to deem them sufficiently reliable to support a search warrant.
Grimes also submits that Doss' statement against penal interest is not a sufficient indicia of reliability, since it was self-serving. Grimes contends that since Doss was also a suspect in Kirby's murder, Doss' statements were made for the purpose of exonerating himself. This issue was also previously addressed in State v. Sneed and Smith, supra. In support of our holding that an affidavit for a search warrant containing admissions of criminal conduct established the reliability of the informant, we quoted the following from United States v. Harris, 403 U.S. 573, 583-84, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971):
Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a "break" does not eliminate the residual risk and opprobrium of having admitted criminal conduct.
Despite Grimes' assertions to the contrary, a statement against penal interest, in and of itself, carries a sufficient indicia of reliability to support a finding of probable cause. United States v. Harris, supra.
Finally, with regard to the search warrant, Grimes contends that Doss' subsequent testimony at trial and in depositions reveals that he was unreliable. What Doss' subsequent testimony revealed is irrelevant. An appellate court is restricted to consideration of the information and circumstances contained within the four corners of the underlying affidavit. State v. Morrison, 243 Neb. 469, 500 N.W.2d 547 (1993); State v. Utterback, supra. Evidence which emerges after the warrant is issued has no bearing on whether the warrant was validly issued. Id.
We conclude that under the totality of the circumstances, the underlying affidavit established probable cause to search. The warrant was therefore proper, and the trial court did not err by refusing to suppress the evidence obtained during the search of Grimes' residence.
MOTION FOR PSYCHOLOGICAL EXAMINATION
Next, Grimes contends the trial court erred in denying his motion for a psychological examination. Grimes sought the examination to support his motion to transfer to juvenile court. Grimes alleged that the psychological examination was necessary for a determination of whether he was of a sufficient psychological, emotional, and mental makeup to be tried as an adult. In support of his motion for evaluation, Grimes alleged that a psychological evaluation performed 18 months earlier showed that he suffered from depression and an adjustment disorder. At a hearing on the motion to transfer, Grimes adduced evidence to that effect.
Grimes, however, has failed to demonstrate that the trial court had any legal right, let alone any legal obligation, to grant such a motion. He has cited no statutory or case law as authority for his position. He merely argues that the denial of the motion was an abuse of discretion.
Grimes is correct in asserting that the "sophistication," "maturity" and "emotional attitude" of a defendant are relevant considerations to the issue of whether the district court should waive jurisdiction in favor of the juvenile court. See Neb. Rev. Stat. § 43-276(6) (Reissue 1988). In deciding whether to transfer proceedings to juvenile court, the court having jurisdiction over a pending criminal prosecution must carefully consider the criteria set forth in § 43-276. State v. Ice, 244 Neb. 875, 509 N.W.2d 407 (1994). Section 43-276 requires that the court consider:
(1) The type of treatment such juvenile would most likely be amenable to; (2) whether there is evidence that the alleged offense included violence or was committed in an aggressive and premeditated manner; (3) the motivation for the commission of the offense; (4) the age of the juvenile and the ages and circumstances of any others involved in the offense; (5) the previous history of the juvenile, including whether he or she had been convicted of any previous offenses or adjudicated in juvenile court, and, if so, whether such offenses were crimes against the person or relating to property, and other previous history of antisocial behavior, if any, including any patterns of physical violence; (6) the sophistication and maturity of the juvenile as determined by consideration of his or her home, school activities, emotional attitude and desire to be treated as an adult, pattern of living, and whether he or she has had previous contact with law enforcement agencies and courts and the nature thereof; (7) whether there are facilities particularly available to the juvenile court for treatment and rehabilitation of the juvenile; (8) whether the best interests of the juvenile and the security of the public may require that the juvenile continue in custody or under supervision for a period extending beyond his or her minority and, if so, the available alternatives best suited to this purpose; and (9) such other matters as the county attorney deems relevant to his or her decision.
See State v. Doyle, 237 Neb. 60, 464 N.W.2d 779 (1991).
However, the fact that evidence obtained from an updated evaluation of Grimes' condition may be relevant does not mean that an evaluation must be ordered. The right of an indigent defendant to the appointment of an expert witness at State expense generally rests in the discretion of the trial court. State v. Lesiak, 234 Neb. 163, 449 N.W.2d 550 (1989). See, also, State v. Suggett, 200 Neb. 693, 264 N.W.2d 876 (1978).
In the case at hand, we cannot say that denial of the motion for evaluation was an abuse of discretion. Although we do not decide whether the trial court's ruling on the motion to transfer was proper, we note that the motion for evaluation was within the context of a motion to transfer to juvenile court. We review a trial court's ruling on a motion to transfer for an abuse of discretion. State v. Ice, supra. Moreover, the consideration of the criteria listed in § 43-276 is a balancing test. Id. A court need not decide all of these criteria against the juvenile before denying a motion to transfer. Id. Thus, although an updated evaluation may have revealed additional information on Grimes' psychological condition, it is unlikely that the additional information would have had enough weight to shift the balance toward transferring this case to juvenile court.
The specific findings contained in the trial court's order overruling Grimes' motion to transfer reveal that many factors militated against a transfer to juvenile court: the serious nature of the charged offense; the alleged violent circumstances under which the offense was alleged to have been committed; Grimes' record with the juvenile court; his admission of gang involvement; and, if the allegations proved true, the fact that such a criminal would pose a threat to society. The trial court's denial of the motion for evaluation is affirmed.
ABSENCE OF MALICE
The essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously. State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994); State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992); 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); State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983). This has been the law in this state since 1983. Id. It has also long been the law of this state that it is the duty of the trial judge to instruct the jury on the pertinent law of the case, whether requested to do so or not, and an instruction or instructions which by the omission of certain elements have the effect of withdrawing from the jury an essential issue or element in the case are prejudicially erroneous. State v. Breaker, 178 Neb. 887, 136 N.W.2d 161 (1965).
In this case, the jury was not instructed that it needed to find that the killing was done maliciously. Therefore, Grimes is entitled to a reversal of his convictions and a new trial.
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 suggestion that including malice as an element of second degree murder "transgresses important and well-established principles of law," supplemental brief for appellee at 3, itself transgresses important and well-established principles of law. As we pointed out in Myers, if malice were not an element of second degree murder, the homicide statutes would not make sense.
Additionally, defining second degree murder without malice would make the performance of many noncriminal acts illegal. For instance, a police officer who kills in the line of duty can be said to have caused the death of a person intentionally. Therefore, absent malice, Neb. Rev. Stat. § 28-304 (Reissue 1989), would be unconstitutionally vague and overbroad. See State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993) (due process requires that criminal statutes be clear and definite and that a crime and ascertainable standards of guilt be defined with sufficient definiteness to inform those subject to the statute what conduct will render them liable to punishment). The State contends that the "justification" statutes, Neb. Rev. Stat. §§ 28-1406 to 28-1416 (Reissue 1989), would save the second degree murder statute from being held unconstitutional. The State argues this would prevent a conviction for noncriminal conduct. However, this would require a police officer, for instance, who is accused of second degree murder for a death in the line of duty to use a justification statute to prove his innocence. This would unconstitutionally shift the burden of proof to the defendant. See State v. Parks, 245 Neb. 205, 511 N.W.2d 774 (1994) (a jury instruction which shifts the burden of proof to a defendant on any essential element of a crime charged violates a defendant's due process right to a fair trial). See, also, Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) (jury instruction which shifts the burden of proof on a mental element of a crime to the defendant violates due process). We in no way suggest that the "justification" statutes are invalid. If malice were not a statutory element of second degree murder and we were to require a defendant committing a "justified" act to adduce some evidence of lack of malice or "justification" in his defense, we would thereby violate that defendant's presumption of innocence. We continue to hold, as we have consistently for the past 11 years, that malice is an essential element of second degree murder.
THE INFORMATION
We also note that the information charging Grimes omitted malice. In pertinent part, the information charged that Grimes did "intentionally, but without premeditation, kill James P. Kirby."
Generally, to charge the defendant with the commission of a criminal offense, an information or complaint must allege each statutorily essential element of the crime charged, expressed in the words of the statute or in language equivalent to the statutory terms defining the crime charged. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989). See, also, State v. Bowen, 244 Neb. 204, 505 N.W.2d 682 (1993) (where an information alleges the commission of a crime using the language of the statute defining that crime or terms equivalent to such statutory definition, the charge is sufficient). However, where as in second degree murder the express language of the statute does not make the elements of the crime clear, the express language of the statute is insufficient. The purpose of an information is to inform the accused, with reasonable certainty, of the charge being made against him in order that he may prepare his defense thereto and also so that he may be able to plead the judgment rendered thereon as a bar to later prosecution for the same offense. State v. Laymon, 239 Neb. 80, 474 N.W.2d 458 (1991). It is this purpose which is paramount.
The general rule has never been applied to an information charging the accused with second degree murder under the current statute, § 28-304. Since a charge under the express language of the statute would omit an essential element of the crime, the general rule is not applicable. See State v. Oman, 265 Minn. 277, 121 N.W.2d 616 (1963) (if a statute does not set forth all the elements necessary to constitute the offense intended to be punished, an indictment simply following the words of the statute is not sufficient, and, in such a case, the indictment must allege with certainty all of the particular elements necessary to bring the case within the intent and meaning of the statute). See, also, Ex parte Allred, 393 So.2d 1030 (Ala. 1981) (indictment is sufficient which substantially follows the language of the statute, provided the statute prescribes with definiteness the constituents of the offense); Stevens v. State, 817 S.W.2d 800 (Tex.Crim. App. 1991) (although an indictment which tracks the language of the statute is ordinarily sufficient, it is not sufficient where more particularity is necessary to meet the requirement of notice to the accused). To be sufficient, an information charging second degree murder must allege that the accused killed purposely and maliciously.
EXCESSIVE SENTENCE
Finally, Grimes contends that his sentence of life in prison is excessive and constitutes an abuse of judicial discretion. We need not address this issue in light of our granting a new trial.
CONCLUSION
The trial court's failure to instruct the jury that malice is an element of second degree murder was prejudicial error. Grimes' convictions are reversed, and the cause is remanded to the district court for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.
BOSLAUGH, J., participating on briefs.