Summary
In State v. Kistenmacher, 231 Neb. 318, 436 N.W.2d 168 (1989), we discussed the extent to which a reckless act involves a conscious choice in a course of action but held that the definition of "recklessly" contained in § 28-109(19) is an objective one, thereby making testimony as to the defendant's subjective intent irrelevant.
Summary of this case from State v. PruettOpinion
No. 87-1050.
Filed February 24, 1989.
1. Assault: Words and Phrases. "Recklessly," as used in Neb. Rev. Stat. § 28-109 (Reissue 1985), means conduct in which an actor disregards a substantial and unjustifiable risk to another, which risk, in view of the nature and purpose of the actor's conduct and circumstances known to him, involves a gross deviation from the standard of conduct which a law-abiding person would have observed in the actor's situation. 2. Jury Instructions: Appeal and Error. All jury instructions must be read together, and if the instructions taken as a whole correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error. 3. Jury Instructions: Assault: Weapons. It is a correct statement of the law, and therefore proper to instruct, that the intentional pointing of a loaded firearm at another person, unless legally justified, is ordinarily an unlawful assault. 4. Sentences: Appeal and Error. Sentences imposed within the limits prescribed by statute will not be disturbed on appeal, absent an abuse of discretion.
Appeal from the District Court for Douglas County: PAUL J. HICKMAN, Judge. Affirmed.
Thomas M. Kenney, Douglas County Public Defender, and Thomas C. Riley for appellant.
Robert M. Spire, Attorney General, and LeRoy W. Sievers for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
A jury found the defendant, Brent D. Kistenmacher, guilty of manslaughter in violation of Neb. Rev. Stat. § 28-305(1) (Reissue 1985), and of using a firearm to commit a felony, a violation of Neb. Rev. Stat. § 28-1205(1) (Reissue 1985), in the shooting death of Jason Cuellar. The defendant was subsequently sentenced to not less than 6 2/3 nor more than 20 years' imprisonment on count I, manslaughter, and not less than 3 nor more than 5 years' imprisonment on count II, the firearm charge, the sentence on count II to run consecutively to the sentence on count I. Defendant appeals, asserting that the trial court erred in (1) granting the State's motion in limine precluding the defendant from offering psychiatric testimony relevant to a material issue in the case; (2) instructing the jury over the defendant's objection that the intentional pointing of a loaded firearm at another person, unless legally justified, is ordinarily an unlawful assault; and (3) imposing an excessive sentence.
On April 12, 1987, at approximately 4:30 p.m., the defendant had returned to his apartment after playing in a softball game. A short time later the deceased, Cuellar, and Bill Morast arrived at the defendant's apartment. Cuellar and Morast remained for about an hour. Also present was Mark Deitering, the defendant's roommate. Thereafter, all four left the apartment, as Kistenmacher and Deitering had made plans to visit some friends.
The defendant and Deitering returned to their apartment at about 9:15 that evening. No one else was in the apartment at that time. The two went into the defendant's room and visited until approximately 9:50 p.m., when they began to hear noises coming from another room of the apartment.
The defendant and Deitering did not know anyone else was in the apartment at that time. Unknown to them, Cuellar and Morast had returned. Cuellar and Morast could hear the defendant and Deitering in the apartment, and let themselves in through the unlocked front door. Cuellar and Morast then sat down on the couch, and Cuellar began to throw Hot Tamale candies at the bedroom door of the defendant.
The defendant owned a .22-caliber double-action revolver which had been given to him by his father several months earlier. He kept this revolver in his nightstand drawer. The defendant testified that he kept the weapon loaded, except that the chamber directly underneath the hammer and the next forward chamber were kept empty.
After hearing the noises caused by Cuellar's throwing the candies at the defendant's door, the defendant and Deitering exited the bedroom and walked down the hall toward the living room. At that point, the defendant thought the noise had been caused by an intruder. As they were approaching the living room, either the defendant or Deitering stated, "Who is it, we've got a gun," and Cuellar and Morast chuckled a bit.
When the defendant and Deitering reached the end of the hall, they recognized the "intruder" as Morast and Cuellar. At that point, believing that the chamber under the hammer was empty, the defendant raised the gun, pointed it at the deceased, and pulled the trigger. A shot was fired, striking Cuellar in the head. At that time, "everybody started just freaking out," and the defendant told Deitering to call 911 for an ambulance.
During questioning at the police station, the defendant admitted that he had shot Cuellar and that at the time of the shooting he knew it was Cuellar and not an intruder. When asked why he would point a gun at a friend of his, the defendant stated that his group of friends would play "head games" with each other to "freak everybody out" and would do things such as point guns at people.
Prior to the trial, the defense notified the State that it intended to call Dr. Thomas Radecki, a psychiatrist, as a witness on behalf of the defendant. The testimony of Dr. Radecki was intended to bear on the state of mind of the defendant at the time of the shooting. The testimony was being offered by the defense to negate the prosecution's claim of reckless conduct on behalf of the defendant. The substance of Dr. Radecki's testimony is contained in an offer of proof made by defense counsel at trial. He testified that his examination of the defendant revealed that Brent Kistenmacher was a 20-year-old who had become "desensitized to the serious nature of the games he was playing." This desensitization was brought about by, among other factors, his choice of violent television programs, heavy metal music, and horror-type movies. Dr. Radecki also stated that this "desensitization" theory was widely accepted in his profession. Because of desensitization, the defendant could not and did not appreciate the great risk of danger posed by his behavior. Evidence of mental defects (desensitization) was excluded in Zuber v. State, 500 So.2d 670 (Fla. App. 1986), the court noting, however, that the expert was not asked whether the defects described were such as would adversely affect and diminish defendant's mental capacity to form specific intent. That omission is not present in this case. Defense counsel argued that this testimony was relevant, as the definition of "recklessly" contained in Neb. Rev. Stat. § 28-109(19) (Reissue 1985) contains a subjective intent requirement, and Dr. Radecki's testimony would have some bearing on the determination of whether the defendant had the requisite subjective intent. The district court sustained the State's motion in limine to exclude the proposed testimony.
The defendant's first assignment of error concerns the exclusion of this expert testimony. Defense counsel asserts that the exclusion of the testimony of Dr. Radecki denied the defendant his constitutional right to present relevant, material evidence in his defense, as guaranteed by the U.S. Supreme Court in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L. Ed. 2d 1019 (1967), and recognized by this court in State v. Ammons, 208 Neb. 797, 305 N.W.2d 808 (1981). Before we can determine whether this right was abridged, it must first be established that this evidence is relevant to the defendant's defense.
The focus of the prosecution was that the defendant was guilty of manslaughter in violation of 28-305(1) because the defendant had killed another, without malice, while in the commission of an unlawful act. The underlying unlawful act was assault in the third degree.
Third degree assault is defined in Neb. Rev. Stat. § 28-310 (Reissue 1985). That statute provides in part: "(1) A person commits the offense of assault in the third degree if he: (a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or (b) Threatens another in a menacing manner." Specifically, it was the State's position that the defendant acted recklessly. The term "recklessly" is statutorily defined in 28-109(19). This subsection provides the following:
(19) Recklessly shall mean acting with respect to a material element of an offense when any person disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
The State argues that in accordance with State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987), the definition of "recklessly" contained in 28-109(19) is an objective one, thereby making any testimony as to the defendant's subjective intent irrelevant. In State v. Hoffman, supra, the defendant became intoxicated, drove his car, and was involved in an accident which took the life of another driver. In Hoffman, the defendant was arguing that he did not have the mental capacity necessary to form the general intent required for second degree assault. Hoffman contended that his intoxication "induced" him to climb behind the wheel, and that he therefore did not "intentionally" cause the death of the victim. When defining "recklessly" in Hoffman, this court stated at 139, 416 N.W.2d at 237:
However, under 28-309(1)(b) concerning a second degree assault based on a reckless act or conduct, an intent to inflict or cause bodily injury is not an element; rather, the reckless act or conduct, causing serious bodily injury, is the gravamen. A reckless act involves a conscious choice in a course of action, made with knowledge of a serious danger or risk to another as a result of such choice of action or with knowledge of the attendant circumstances which, to a reasonable person, would indicate or disclose a serious danger or risk to another as a result of the course of action selected. See, People v. Mason, 198 Misc. 452, 97 N.Y.S.2d 462 (1950); State v. Bischert, 131 Mont. 152, 308 P.2d 969 (1957); 22 C.J.S. Criminal Law 31(5) (1961).
The defendant's argument in this action is analogous to the theory propounded by the defendant in Hoffman and rejected by this court. In this case, Kistenmacher's act involved a conscious choice in a course of action: pointing a loaded firearm at a person and pulling the trigger, made with the knowledge of a serious danger or risk to another as a result of the choice of action; the defendant realized that some danger existed when he pointed a loaded gun at Cuellar and pulled the trigger, which to a reasonable person would indicate or disclose a serious danger or risk to another as a result of the course of action selected; a reasonable person in a similar situation would realize the serious risk that his conduct posed to the victim.
Just as we rejected the argument in Hoffman that the statutory definition of "recklessly" contains a subjective element, so must we reject that argument in this case. Therefore, because the test for recklessness as statutorily defined in 28-109(19) is purely objective, Dr. Radecki's testimony was irrelevant and properly excluded by the district court.
The defendant next assigns as error the instruction given to the jury regarding the definition of an unlawful assault. This jury instruction reads: "You are further instructed that the intentional pointing of a loaded firearm at another person, unless legally justified, is ordinarily an unlawful assault. Further, it is the law of this state that one who threatens another in a menacing manner, unless legally justified, commits an unlawful assault." The defendant contends that the giving of the first portion of the instruction, "the intentional pointing of a loaded firearm at another person, unless legally justified, is ordinarily an unlawful assault," was given in error, as this instruction invaded the province of the jury to pass upon the facts of the case.
This instruction was apparently taken from a line of Nebraska Supreme Court cases. Ford v. State, 71 Neb. 246, 98 N.W. 807 (1904); Egbert v. State, 113 Neb. 790, 205 N.W. 252 (1925); Turpit v. State, 154 Neb. 385, 48 N.W.2d 83 (1951); State v. Archbold, 178 Neb. 433, 133 N.W.2d 601 (1965). The trial court retains discretion in the wording of jury instructions. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). The instruction that was given to the jury in this case is a correct statement of the law. As stated in State v. Bartholomew, 212 Neb. 270, 275, 322 N.W.2d 432, 436 (1982), "`All the instructions must be read together and if the instructions taken as a whole correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error.'"
This court has held, and it is a correct statement of the law and therefore proper to instruct, that "the intentional pointing of a loaded firearm at another person, unless legally justified, is ordinarily an unlawful assault." Therefore, this second assignment of error is without merit.
The defendant next assigns as error the sentence imposed upon him. The defendant was sentenced to a combined term of 9 2/3 to 25 years' imprisonment. The defendant was convicted of manslaughter, a Class III felony, carrying the possibility of a term of imprisonment from 1 to 20 years. Additionally, the defendant was convicted of use of a firearm in the commission of a felony, also a Class III felony. Section 28-1205 regarding use of a firearm in the commission of a felony requires that sentence to run consecutively to the sentence imposed for the underlying felony. In this case, the district court sentenced the defendant to the maximum possible sentence for manslaughter, 6 2/3 to 20 years' imprisonment, and then a consecutive sentence of 3 to 5 years' imprisonment for the use of a firearm charge.
The sentences given are obviously within the limits prescribed by statute. This court has repeatedly held that sentences imposed within the limits prescribed by the statutes in question will not be disturbed on appeal, in the absence of an abuse of discretion. State v. Dillon, 222 Neb. 131, 382 N.W.2d 353 (1986). From a review of the record, no abuse of discretion is shown. Therefore, the defendant's contention that the trial court imposed an excessive sentence is without merit.
We cannot sustain any of the assignments of error urged by the defendant. It therefore follows that the judgment and sentences of the district court must be and are affirmed.
AFFIRMED.