STATE v. JONES -- EX POST FACTO?


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In the recent decision, Rogers v. Tennessee, 121 S.Ct. 1693 (2001), the U.S. Supreme Court distinguished between judicial interpretations of statutes as either ex post facto or due process violations and set the standard for showing such violations. The Court reiterated its previous characterization of the ex post facto clause as applying to Legislatures only, but that changes in judicial interpretations of statutes could be violations of the Due Process Clause. See, Marks v. United States, 97 S.Ct. 990 (1977). The Court reached back to Bouie v. City of Columbia, 84 S.Ct. 1697 (1964), to set the standard for claiming that a change in the judicial interpretation of a statute violated the Due Process Clause of the 5th and 14th Amendments. The Court concluded, "that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is 'unexpected and indefensible' by reference to the law which had been expressed prior to the conduct in issue."

Applying this standard we argue that the Nebraska Supreme Court's decision in State v. Jones, removing the element of intent from the crime of manslaughter upon a sudden quarrel, was unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.

Prior to the conduct in State v. Caddy, 262 Neb 38, 628 N.W.2d 251 (2001), the Nebraska Supreme Court had decided that intent was an element of manslaughter upon a sudden quarrel. In State v. Pettit, 233 Neb 436, 445 N.W.2d 890 (1989), the Court definitively answered the question which had been raised by dicta in State v. Batista, 231 Neb 481, 437 N.W.2d 125 (1989); whether "intent to kill" is an element of manslaughter upon a sudden quarrel. The Pettit Court elaborately laid out their finding that, not only was intent to kill an element of manslaughter upon a sudden quarrel, but that it had always been so since before the adoption of the General Statutes of 1873. This finding of law was repeated in the May 1992, decision, State v. Cave, 240 Neb.783, 484 N.W.2d 458 (1992). The conduct in Caddy's case took place one month later, in June of 1992. Therefore, Pettit and Cave are our "reference to the law which had been expressed prior to the conduct in issue."

In light of the Pettit and Cave decisions, the Jones Court's reversal and removal of the element of intent to kill from the crime of manslaughter upon a sudden quarrel is unquestionably "unexpected by reference to the law which had been expressed prior to the conduct in issue;" thus meeting the first prong of the U.S. Supreme Court's standard from Rogers v. Tennessee. The Jones decision was also unexpected because neither the elements of manslaughter, the manslaughter statute, nor the manslaughter jury instruction were assigned as error in Jones.

Indefensible

The Jones decision is also "indefensible" for a number of reasons. First, it goes against the Legislative intent in adopting the new criminal code in LB 38, Laws 1977, and also against the U.S. Supreme Court case law regarding the expression of the element of intent in a criminal statute. Second, it goes against the plain language of the manslaughter statute, as defined by Nebraska law.

First, the legislative intent in changing the nature of the crime of second degree murder is plainly stated in the Judiciary Committee's summary of LB 38; "It differs from the present section, which requires the killing to be purposely and maliciously, whereas the new code requires that the cause of death of a person need only be done intentionally." However, in describing the new manslaughter statute the Legislative summary stated; "Section 20 defines manslaughter and is the same as Section 28-403 of the present law." Therefore, there is no explicit support for any Legislative intent to change the elements of manslaughter upon a sudden quarrel.

Legislative Intent

The Legislative hearings and debates also contain no explicit support for making manslaughter a general intent crime. Explicit Legislative intent is necessary to create a general intent crime; particularly when the prior law, or common law, had required a specific intent. The U.S. Supreme Court has ruled that legislative silence as to a mental element in a crime already so well defined in common law and statutory interpretation, is not to be construed as eliminating that element from the crime. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240 (1952). There can be no doubt, following the Pettit decision, that intent to kill was, and had always been an element of the crime of manslaughter upon a sudden quarrel. Therefore, it was "indefensible" for the Nebraska Supreme Court to impose its interpretation of the elements of manslaughter upon a sudden quarrel over the intent of the Legislature. Even if the Legislative intent is silent, the Jones decision is contrary to the clearly established federal law as determined by the U.S. Supreme Court in the Morissette decision.

Statutory Language

Second, a careful examination of the statutory interpretation of the language in the manslaughter statute logically leads to the traditional interpretation that intent to kill is an element of manslaughter upon a sudden quarrel. Under Nebraska law, "malice" is defined as a state of mind shown by the intentional doing of a wrongful act, without just cause or excuse. State v. Ryan, 249 Neb 218, 543 N.W.2d 128 (1996). This definition can be traced back through Nebraska case law to Carr v. State, 23 Neb 749, 37 N.W. 630 (1888). It is safe to say that this has always been the definition of "malice" in the State of Nebraska.

Malice, therefore, is shown by three things: (a) the intentional doing of (b) a wrongful act, (c) without just cause or excuse. Since all acts must be either with malice or without malice, it is proper to say that "without malice" means the opposite of malice. With this three part definition of "malice" there are seven different definitions which can be "without malice." These definitions are, in logical sequence:

(1) not (a), but (b) and (c); that is, unintentionally doing a wrongful act without just cause or excuse.
(2) not (a), but (b) and not (c); that is, unintentionally doing a wrongful act with just cause or excuse.

These two definitions are both, the unintentional doing of a wrongful act, whether or not there is a just cause or excuse. These definitions are the crime of "unlawful act" manslaughter: "causes the death of another unintentionally while in the commission of an unlawful act." This is the second half of the manslaughter statute.

(3) not (a), not (b), but (c); that is, unintentionally doing a lawful act without just cause or excuse.
(4) not (a), not (b), and not (c); that is, unintentionally doing a lawful act with just cause or excuse.

Both of these definitions describe doing a lawful act and are, therefore, not a crime at all. Notice that each of these first 4 definitions all had "unintentionally" in common. All of the definitions of "without malice" that are unintentional are either not crimes or they describe the crime of "unlawful act" manslaughter.

The remaining 3 definitions of "without malice" all have the element of being intentional, (a), in common. These are:

(5). (a), not (b), but (c); that is, intentionally doing a lawful act without just cause or excuse.
(6) (a), not (b), and not (c); that is, intentionally doing a lawful act with just cause or excuse.

Once again, these two definitions are both for lawful acts and are, therefore, not crimes.

(7) (a), (b), and not (c); that is, intentionally doing a wrongful act with just cause or excuse.

This last definition is precisely the definition of sudden quarrel manslaughter because the legislature has set up the sudden quarrel as the excuse for forming the intent to kill. Therefore, "without malice" can include the element of the intent to kill, just as Nebraska has held for the past 100 years before the Jones decision.

The plain language of the manslaughter statute uses the element of "without malice" for both types of manslaughter; "sudden quarrel" manslaughter and "unlawful act" manslaughter.

A person commits manslaughter if he kills another without malice,
either upon a sudden quarrel, or causes the death of another
unintentionally while in the commission of an unlawful act.

Neb.Rev.Stat. §28-305 (Reissue 1995)

But the language of the statute further restricts which of the possible meanings of "without malice" are used in each type. The words "kills another," as opposed to "causes the death of another," implies an intent to cause the death. However, it is the element "without malice" that is qualified in two ways: "either upon a sudden quarrel, or ... unintentionally while in the commission of an unlawful act."

Killing another, without malice, upon a sudden quarrel, can obviously fall into our definition (7); intentionally doing a wrongful act with just cause or excuse. Here, sudden quarrel manslaughter is the intentionally causing the death of another (the "killing" is the wrongful act) with the Legislatively created excuse of the sudden quarrel.

Likewise, causing the death of another unintentionally but while in the commission of an unlawful act, is just our definitions (2)&(3): the unintentional doing of a wrongful act. It no longer matters whether an excuse exists or not. Here the wrongful act is the "causing the death of another ... while in the commission of an unlawful act," as required by the statute.

Obviously the plain language of the statute requires 'the element of intent to kill for sudden quarrel manslaughter. This is in addition to over 100 years of case law interpreting the crime of manslaughter upon a sudden quarrel to require the element of intent and the Legislature's intent to leave the crime of manslaughter "the same as ... in the present law." At the very least, it is "indefensible" for the Nebraska Supreme Court to change it and then try to apply that change to Caddy's case, or any case, which took place before their decision in Jones.

While that is enough to show that applying Jones to Caddy's case violates Due Process, another problem shows how unexpected and indefensible the Jones decision is. Since the removing of the element of intent to kill from both types of manslaughter there can no longer be a conviction for using a deadly weapon in the commission of the felony of manslaughter. Even when a firearm is used to commit the manslaughter! See, State v. Pruett, 263 Neb 99, 638 N.W.2d 809 (2002).

Violating the New Standard, and Then Some

In conclusion, the Jones decision's removing the element of intent to kill was unexpected and indefensible. It's application to cases that occurred before that decision is a violation of the Due Process Clause of the 5th and 14th Amendments to the U. S. Constitution. Furthermore, under Nebraska law the Jones decision cannot correct the unconstitutionality of the second degree murder statute. Under Nebraska law, if a legislative act is unconstitutional when enacted, it cannot become valid law simply by removing the reason of its invalidity; it must be re-enacted by the Legislature to become valid. Central Bank of Lincoln v. Sutherland, 113 Neb 126, 202 N.W. 428 (1925).

Certainly, since the time of the enactment of the new criminal code, manslaughter upon a sudden quarrel included the element of intent to kill. While intent to kill was an element of manslaughter there existed an arbitrary choice between second degree murder and manslaughter upon a sudden quarrel, which renders the second degree murder statute, 28-304, unconstitutional. It must be re-enacted by the Legislature to be valid.


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General Intent Crime: Most crimes require the perpetrator to have a knowing intent to wrong. These are called specific intent crimes. However, a few crimes are called general intent crimes and do not require proof of the perpetrator's knowledge or evil intent. For example, the crime of statutory rape, having sex with an underage person, is a general intent crime. If it were a specific intent crime it would require the prosecution to prove that the perpetrator knew the person they had sex with was underage. That would open up a defense for the perpetrator to simply say, "But I didn't know she was underage." As a general intent crime, it is not necessary to prove that the perpetrator "knew" the person they had sex with was underage and still intended to have sex with them. Because these general intent crimes are the exception rather than the rule, the Legislature, enacting a statute that creates a general intent crime, must explicitly say the crime is one of general intent; this will not be assumed from that Legislature's silence on the issue. (Back from Note)

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