State of Nebraska v. Darren Myers


©2000 www.nebraskapen.org Last updated:09/15/02



Comments or Questions| Back to Malice Index


Overview of State v. Myers

This is that case that started all the publicity over Nebraska's "Malice" problem. All of the "malice" cases rely upon the decision that was made in this case. Although it may appear that the decision came out of nowhere, you will see that this "malice" decision solved the problem that was raised in State v. Cave. Knowing that you can understand why the Court did this.

The Briefs

We have included the briefs submitted to the Court by both the Defendant and the State not so much for what they contain but to show what they do not contain. When you read the briefs you will notice that neither Myers nor the State argued that "malice" was a necessary element of second degree murder. No one complained that the trial court had done something wrong by not putting "malice" into the second degree murder instruction. Myers' argument about the jury being improperly instructed is simply that the crimes of murder and manslaughter were not defined as felonies in the jury instructions. Without those definitions the jury might think they cannot convict him of using a firearm to commit a felony if they only convicted him of manslaughter because the jury might assume that manslaughter was not a felony. In that case a jury might prefer to convict him of second degree murder rather than manslaughter if they had all agreed that a firearm was used in the crime.

The Court's Decision

Only 2 pages of this 13 page decision actually deal with the problem in the Second Degree Murder Instructions. There is no dissenting opinion, all the participating judges agreed with this decision. One can only wonder if they realized the impact this decision was going to have.

Plain Error

The Court explains that the lack of "malice" in the second degree murder instruction was not raised in the briefs but that the Court reserves the right to note plain error and to correct it. They explain the facts of this case, that Myers received jury instruction on all three homicide crimes, first degree murder, second degree murder, and manslaughter. Then they explain how the prior second degree murder statute, Neb.Rev.Stat.§28-402 (Reissue 1975) required a killing be done "purposely and maliciously." In the current code, they admit, the second degree murder statute, Neb.Rev.Stat. §28-304, does not mention malice.

A Clever Solution

However, despite the change in the statutory definition of second degree murder, the Court claims it has continued to require malice as an element of second degree murder. This claim raises a number of questions: How did the Court continue to require malice as an element of second degree murder? Can they, i.e. do they have the power or authority to do that? And why would they do it this way? By that I mean, why would they claim they have always required malice to be an element of second degree murder? Why not just say that Malice has to be in there from now on?

How did they do that?

To justify their claim that they have continued to require malice as an element of second degree murder despite the change in the statute the Court cites their decision in State v. Rowe, 214 Neb 685, 335 N.W.2d 309 (1983). The crime in Rowe occurred in May of 1980, just a year after the statute was changed. Even so, the Court held that a killing had to be done purposely and maliciously to be second degree murder. In effect the Court is saying there is nothing new here, we have always done it this way.

Question Authority

Read Rowe for yourself. The case cited by the Court was actually the appeal from Rowe"s second trial. Rowe's first conviction was overturned on appeal in State v. Rowe, 210 Neb 419, 315 N.W.2d 250 (1982). In this first appeal the Court properly recited the new statutory definition of 2nd degree murder. They also discuss the definition of manslaughter as being "without malice." Rowe's first conviction was overturned because the trial court failed to instruct the jury on the "lesser-included offense of manslaughter." In this first appeal the Court never says malice is a necessary part of second degree murder, they only say that the difference between murder in the second degree and manslaughter is the absence of malice. And that is true because manslaughter is defined as "without malice". That does not make "malice" a part of the second degree murder statute. If it did, then why didn't the Myers Court cite to this first Rowe appeal rather than just the second one?

The second Rowe appeal, cited by the Myers Court, again recites the new statute: "A person commits murder in the second degree if he causes the death of a person intentionally but without premeditation." Immediately after that the Court recites from State v. Clermont, 204 Neb 611, 284 N.W.2d 412 (1979): "The essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously."

Sloppy Scholarship?

Wait a minute! The crime in Clermont's case was committed on July 22, 1978, before the new second degree murder statute became effective. So the Clermont case was correct when it stated that second degree murder was one done "purposely and maliciously" because that was what the old statute, the statute in effect at the time that crime was committed, actually said. The new second degree murder statute did not become effective until January 1, 1979. Why drag the old definition of the crime into Rowe's second appeal when they didn't do that in the first Rowe case? Was this just sloppy scholarship on the part of the Rowe Court to use an old case whose definitions were no longer valid?

Or a Necessary Excuse?

Remember, the first Rowe case was reversed because Rowe did not get a manslaughter jury instruction. When he went back for his retrial he got the manslaughter jury instruction but the jury once again convicted him of second degree murder. On that second appeal Rowe argued that the evidence was insufficient as a matter of law to support a conviction. Sound familiar? That is the same argument we saw Cave make in State v. Cave. In Rowe, like Cave, not only was the Court trying to explain that there was sufficient evidence for a conviction, but more to our point, that "there was sufficient evidence from which the jury could find the defendant guilty of murder in the second degree," not just guilty of manslaughter. Even back then the Court was using "malice" as an excuse to distinguish between second degree murder and manslaughter.

Would Myers have reversed Rowe?

Even using "malice" as this excuse, the Rowe Court never discusses what Rowe's second degree murder instruction says. Did Rowe's jury instruction include the element of "malice" for second degree? Would the Myers Court's decision have overturned Rowe's conviction a second time because the jury was not properly instructed? Only the dusty archives know for sure. But it begs the question: If the Rowe Court was really holding that "malice" was a necessary element of second degree murder, as the Myers Court wants us to believe, then why didn't they do what the Myers Court said "plain error" required them to do?

The Court's Authority

On to the second question: Does the Nebraska Supreme Court have the authority to add or insert something into the definition of the crime of second degree murder? Irregardless of whether they had inserted or added "malice" back into the statute in 1994 with the Myers decision or whether they had added it in way back in 1983 with the Rowe decision, do they have the power to do that? The simple answer is, no. But as we pointed out earlier there is no dissenting opinion in the Myers case so this question won't get raised until a new justice is added to the Court and the dissenting opinions begin in State v. Grimes, 249 Neb 218, 543 N.W.2d 128 (1996). We will deal with this question then by looking at how the Court deals with the dissents in those cases.

From now on...

Now for that last question: Why didn't the Court simply say from now on "malice" is an element of second degree murder, rather than trying to say they had always required "malice" as an element of that crime? It is obvious, as we showed in the Overview of Selected Cases before Myers and Jones, that the Court hadn't always required "malice" as an element of second degree murder. When it is that obviously wrong why go to that trouble?

The answer to the question deals with Court's judicial interpretations of statutes and how Legislatures (which create statutes) react to those judicial interpretations. Normally, when the language of a statute is ambiguous, Courts can interpret what the language of that statute actually means. Their first criteria to determine what the statute means is what the Legislature intended it to mean. So when a Court says that this statute means a certain thing, the Legislature may still agree or disagree with what the Court says. The Legislature can then respond by amending or modifying the statute so that it is unambiguous in its meaning. This leads to the general principle that when a Court interprets statutory language and that interpretation does not cause some Legislative response, then that interpretation is considered to have been correct.

Now you see why the Myers Court reached all the way back to the Rowe decision. The Myers Court was trying to say that they had interpreted the second degree murder statute way back in 1983 to require the element of "malice". That interpretation hadn't caused any response or amendment from the Legislature since then. Therefore, the interpretation of the second degree murder statute requiring "malice" as an element would be presumed to be the correct one under the general principle. A clever solution to the problem.

Why go to all that trouble?

The fact that the Myers Court went to all that trouble to make up the excuse that would extend all the way back to the inception of the new statute shows that they understood what they were doing. They understood the problem in the second degree murder statute was the fact that it didn't sufficiently distinguish between itself and manslaughter. They learned that in State v. Cave, and that problem had been bothering them ever since they left it there unsolved. But how could they fix it? Simple, add something to the second degree murder statute that would easily distinguish between the two crimes. But how do they get away with that if they don't have the authority to add something into a statute? Simple, just say we interpreted it in there a long time ago and the Legislature never complained. Yeah, that's the ticket! The public will buy that.

Well, as recent history has shown, the Myers Court was wrong. The rest of Nebraska's judicial branch of government knew this was wrong and wouldn't go along with this solution to the problem. Not that the rest of Nebraska's judicial branch wanted to solve this constitutional problem. They just wanted to go back to covering it up like they had been doing for the last 20 years. The protests of this and other special interest groups and the negative publicity that came out of the Myers decision would eventually result in the "lynching" of Judge Lanphier (by a 2 to 1 margin) in his November 1996 retention vote. Within four and a half years every Justice of the Nebraska Supreme Court will have been replaced.

Important Points

To prepare you for the cases that come after Myers I want to summarize the significant points in the Myers decision. First, the lack of the element of "malice" was confined to the jury instructions in this case. Later the Court will expand this requirement. Next, the Myers Court used "malice" to distinguish between second degree murder and manslaughter. Later on they will try to change the definition of "manslaughter" to find some other way to make this distinction.



Comments or Questions| Top of Article| Malice Index| Home Page

Myers' Brief

S-92-1195

IN THE SUPREME COURT OF NEBRASKA

____________________________________

THE STATE OF NEBRASKA

Appellee,

v.

DARREN LEE MYERS
Appellant.

____________________________________

APPEAL FROM THE DISTRICT COURT
OF ADAMS COUNTY, NEBRASKA

Honorable Stephen R. Illingworth, District Judge

_____________________________________
BRIEF OF APPELLANT

Arthur R. Langvardt - 12390
422 N. Hastings Avenue, Suite 105
Hastings, Nebraska 68901
(402) 463-9819
Attorney for Apellant



INDEX

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ASSIGNMENT OF ERRORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PROPOSITIONS OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

I. The trial court's failure to instruct the jury as to which of the possible crimes were felonies, on the charge of using a firearm to commit a felony, was error.. . . . . . . . . . . 9

II. The reasonableness of an accused's actions, alleged by him to be in self defense, are measured by the subjective belief he entertained as to their necessity, not by the objective standard of whether those actions were actually necessary.. . . . . . . . . . . . . . . . . . . . . . . . . . .. . 11

III. A prosecutor's repeated attempts to inject evidence regarding drugs, drug use or drug dealing into a trial, without any evidence that such activities were connected to the crime in question, may have the cumulative effect of denying an accused a fair trial.. . . . ...13

IV. A prosecutor's emphasis, by questions to his witnesses and by his remarks to the jury, upon the accused's choosing not to make statements to law enforcement after being placed in custody violates the accused's constitutional right to remain silent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

V. A prosecutor is not allowed to make comments to the jury which express his personal beliefs as to the credibility of witnesses or the guilt of the accused.. . . . . . . . . . . . . . . . .18

VI. It is highly improper for a prosecutor to ask a series of questions which imply the existence of facts which the prosecutor knows he cannot support with evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..19

VII. The sentencing of Darren Myers to life in prison was an abuse of the trial court's discretion. . . . . . . . . . .24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26



CASES CITED

State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989) . . . . . . . . . . 3,10
State v. Sims, 213 Neb. 708, 331 N.W.2d 255 (1983) . . . . . . . . . . . 3,11
Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960) . . . . . . . . . 3,4,16,18
Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976) . . . . . . . . . . . . . 4,17
State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981) . . . . . . . . . . . 4,17
State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985). . . . . . . . . 4,17
State v. Lebron, 217 Neb. 452, 349 N.W.2d 918 (1984) . . . . . . . . . 4,18
Harris v. State, 394, N.W.2d 97 (Ind. 1979) . . . . . . . . . . . . . . . . . . . 4, 23
People v. DiPaolo, 115 N.W.2d 78 (Mich. 1962) . . . . . . . . . . . . .. . . 4, 23
State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982) . . . . . . . . . . 4, 22
State v. Flowers, 114 N.W.2d 78 (Minn. 1962) . . . . . . . . . . . . . . . . . 4, 22
State v. Holsinger, 601 P.2d 1054 (Ariz. 1979) . . . . . . . . . . . . . . . . . . 4, 23
State v. Jackson, 217 Neb 363, 348 N.W.2d 876 (1984) . . . . . . . . . . 4, 22
Morteney v. State, 210 Neb. 172, 313 N.W.2d 449 (1981). . . . . . . . . 5, 26
State v. Barajas, 195 Neb. 502, 238 N.W.2d 913 (1976) . . . . . . . . . . 5, 26
State v. Dean, 237 Neb. 65, 464 N.W.2d. (1991) . . . . . . . . . . . . . . . . 5, 26
State v. Ettleman, 229 Neb. 220, 426 N.W.2d 894 (1988) . . . . . . . . . 5, 26
State v. Jackson, 200 Neb. 827, 265 N.W.2d 850 (1978) . . . . . . . . . 5, 26
State v. Johnson, 200 Neb. 760, 266 N.W.2d 193 (1978) . . . . . . . . . 5, 26
State v. Kelly, 207 Neb. 295, 298 N.W. 2d 370 (1980) . . . . . . . . . . . 5, 26
State v. Pilgrim, 182 Neb 594, 156 N.W.2d 171 (1968) . . . . . . . . . . 5, 26
State v. Nelson, 181 N.W. 850, 856, 114 N.W.2d at 81 . . . . . . . . . . 22
State v. Riveria, 197 Neb. 629, 249 N.W.2d 914 (1977). . . . . . . . . . 5, 26
State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1971). . . . . 5, 26
State v. Threet, 231 Neb. 809, 438 N.W. 2d 746 (1989). . . . . . . . . . 5-26
State v. Sengton, 182 P.2d 920 (Ariz. 1947) . . . . . . . . . . . . . . . . . . . . 23
State v. True, 236 Neb. 274, 460 N.W.2d 668 (1990) . . . . . . . . . . . . 25
State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988) . . . . . . . . . . 25
State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986) . . . . . . . . . 25
State v. Hunt, 214 Neb. 214, 333 N.W.2d 405 (1983) . . . . . . . . . . . . 25
State v. McNichols, 210 Neb. 875, 317 N.W.2d 95 (1982) . . . . . . . . .25
State v. Ryan, 226 Neb. 59,409 N.W.2d 579 (1987) . . . . . . . . . . . . . . 25

STATUTES CITED

Neb. Rev. Stat. Section 28-303(1) (Reissue 1989). . . . 1
Neb. Rev. Stat. Section 27-405 (Reissue 1989). . . . . . 3
Neb. Rev. Stat Section 28-1409 (Reissue 1989). . . . . . 3,11
Neb. Rev. Stat Section 27-401 (Reissue 1989). . . . . . . 3
Neb. Rev. Stat Section 27- 403 (Reissue 1989). . . . . . 3
Neb. Rev. Stat Section 28-105 (Reissue 1989). . . . . . . 5,25
Neb. Rev. Stat Section 28-1205 (Reissue 1989). . . . . . 1

OTHER AUTHORITIES CITED

U.S. Constitution, Amendment 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ABA Code of Professional Responsibility, DR7-106 (c) (1) . . .. . . . . . . 4, 22
American Bar Association Project on Standards For Criminal
Justice, The Prosecution Function And The Defense Function,
Section 5-7 (d), Page 9
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 22


STATEMENT OF THE CASE
A. The Type of Action

This was a criminal prosecution in the District Court of Adams County, Nebraska, in which Darren Lee Myers was charged with the first degree murder of one Kervin Thomas in violation of Neb. Rev. Stat. Section 28-303 (1) (Reissue 1989), and the use of a firearm in commission of a felony in violation of Neb. Rev. Stat. Section 28-1205 (Reissue 1989). (T2).

B. Issues Tried

The case was tried to a jury. At trial, the chief issue was whether or not Darren Lee Myers killed Kervin Thomas in self defense or, on the other hand, with premeditation.

C. How The Issues Were Decided

By a verdict on August 27, 1992, the jury found the Defendant guilty of second degree murder and using a firearm to commit a felony. (T5,6). On November 30, 1992, the Defendant was sentenced to life in prison on the murder charge and 5 to 15 years on the firearms charge. (T11).

D. Scope of Supreme Court's Review

The Court should review the record for errors appearing therein and, as to the sentence imposed, should examine it to determine whether there was an abuse of discretion by the sentencing judge.

_________________________________

ASSIGNMENT OF ERRORS

  1. The trial court erred in over ruling Appellant's Motion For New Trial.
  2. The trial court erred in giving its Instructions to the jury in the following particulars:
    1. The Court's Instruction No. 15, as given, was contrary to the law governing self defense.
    2. The Court improperly refused the Defendant's proposed instructions relating to self defense.
    3. The Court gave no instructions from which the jury would know that any of the possible crimes instructed upon were felonies under Nebraska Law.
  3. The Appellant was denied a fair trial by reason of prosecutorial misconduct in the following particulars:
    1. The prosecutor persistently and repeatedly put before the jury irrelevant and non-probative evidence relating to "drugs", "drug use" and "drug dealing" which had the effect of confusing and prejudicing the jury.
    2. The prosecutor in questioning witnesses and in closing argument commented upon the Appellant's declining to give any statement to law enforcement authorities following his arrest.
    3. The prosecutor, in closing argument, stated his personal belief that Appellant did not act in self defense and his personal belief in the guilt of Appellant.
    4. The prosecutor, in his cross-examination of Appellant, put to him a series of questions implying specific factual knowledge on his part which was in direct contradiction to Appellant's testimony, knowing that he could not support the accusations in such questions with evidence.
  4. The sentence imposed by the trial court was excessive and an abuse of discretion.
_______________________________________

PROPOSITIONS OF LAW

I. A trial court, whether requested to or not, must accurately instruct the jury on the law to be applied by them to each finding they are called upon to make, and its failure to give an accurate statement of the law or to give a necessary instruction as to the law is error.
Neb. Rev. Stat. Section 27-405 (Reissue 1989).
Neb. Rev. Stat. Section 28-1409 (Reissue 1989).
State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989).
State v. Sims, 213 Neb. 708, 331 N.W.2d 255 (1983).

II. A prosecutor is charged with the duty of conducting a criminal trial in such a manner that the accused receives a fair trial, and his repeated placing of irrelevant but prejudicial evidence before the jury can have the effect of denying a fair trial.
Neb. Rev. Stat. Section 27-401 (Reissue 1989).
Neb. Rev. Stat. Section 27-403 (Reissue 1989).
State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989).
Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960).

III. When, by questions to his witnesses and by his comments to the jury, a prosecutor emphasizes the accused's failure to make statements to law enforcement authorities after he was in custody, he violates the accused's Fifth Amendment rights.
U.S. Constitution, Amendment 5
Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976).
State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981).
State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985).

IV. A prosecutor may not make comments to the jury which express his personal beliefs as to the guilt of the accused.
State v. Lebron, 217 Neb. 452, 349 N.W.2d 918 (1984).
Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960).

V. It is impermissible for a prosecutor to ask a question and more so a series of questions, which imply the existence of facts which the prosecutor knows he cannot support with evidence.
Harris v. State, 394 N.W.2d 97 (Ind. 1979).
People v. DiPaolo, 115 N.W.2d 78 (Mich. 1962).
State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982).
State v. Flowers, 114 N.W.2d 78 (Minn. 1962).
State v. Holsinger, 601 P.2d 1054 (Ariz. 1979).
State v. Jackson, 217 Neb. 363, 348 N.W.2d 876 (1984).
ABA Code of Professional Responsibility, DR7-106(c) (1).
American Bar Association Project on Standards For Criminal Justice, The Prosecution Function And The Defense Function, Section 5-7 (d), page 9.

VI. A sentence of life imprisonment upon a conviction of second degree murder is an abuse of the trial court's discretion when there is no criminal history and no showing of a likelihood of further criminal activity.
Neb. Rev. Stat.Seciton 28-105 (Reissue 1989).
Morteney v. State, 210 Neb. 172, 313 N.W.2d 449 (1981).
State v. Barajas, 195 Neb. 502, 238 N.W.2d 913 (1976).
State v. Dean, 237 Neb. 65, 464 N.W.2d (1991).
State v. Ettleman, 229 Neb. 220, 426 N.W.2d 894 (1988).
State v. Jackson, 200 Neb. 760, 266 N.W.2d 193 (1978).
State v. Kelly, 207 Neb. 295, 298 N.W.2d 370 (1980).
State v. Pilgrim, 182 Neb. 594, 156 N.W.2d 171 (1968).
State v. Rivera, 197 Neb. 629, 249 N.W.2d 914 (1977).
State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1971).
State v. Threet, 231 Neb. 809, 438 N.W.2d 746 (1989).

____________________________________________________

STATEMENT OF FACTS

On the evening of January 24, 1992, one Kervin Thomas was shot by the Appellant, Darren Lee Myers, at a location a few miles outside Hastings, Nebraska, and died at the scene. Also present at the time was a David Jones, who testified at the trial.

Prior to the shooting Darren Myers had shown up at David Jones' apartment to pick up some money Jones owed him (1226:3-17). Appellant said he was told to come at that time (1219:5-17); Jones said no specific time was set but immediately upon Myers' arrival he handed him $20.00 of the $25.00 owed without any request being made. (1229:24-1230:18). When Myers arrived the door was opened by Kervin Thomas (1227:2-3). Shortly thereafter Thomas suggested Myers take them to get cigarettes and some small bottles of whiskey and suggested they ride around. (1233:23-1234:20).

The three rode around in the country and after a period of time Myers pulled off the road to urinate. (1240:20-1245:25). There had been no arguments or disagreements among any of the three that night. (1246:6-20).

Jones testified that Myers got out, urinated, and then told the other two the left rear tire was flat and they would have to walk. He said that he and Thomas got out and started to walk, that Myers then had them look at the tire, and that they decided to drive on it. (47:13-56:5). He stated that as he was about to enter the right door he looked to his left and saw Thomas looking toward him. He said that Myers was behind Thomas, aiming his gun at Thomas' back, and that Myers then fired. (59:18-62:16; 212:7-214:4).

Darren Myers, on the other hand, testified that after pulling off the road to urinate he got out the driver's door and did so, and that Jones and Thomas got out the right door and were standing on the right side of the truck. [1249:7-11]. He stated that Kervin Thomas said something to the effect that the right front tire was flat again. [1249:18-1250:18]. This was the same leaky tire into which Myers had put air on the way out of town. [1250:17-20]. As Myers came around the rear of the truck to look at the tire, Thomas suddenly came toward him and grabbed him. Myers pushed Thomas away and Thomas came at him again, grabbing at Myers' throat. Myers pushed him back again and took out the gun from the back of his pants. As Thomas charged again he fired the gun. He turned to see Jones running away, then turned back and was grabbed again by Thomas. He fired again. Thomas staggered away from the truck and collapsed in the field. [1251:1-1259:1].

Myers testified there had been no arguments or disputes among any of the three that evening. [1246:19,20]. Jones said the same. [57:18-58:3]. Myers did, however, describe run-ins with Thomas he had had several months previously. These had occurred while Myers was working in a bar where Thomas was not allowed to enter. [1193:23-1203:11]. He testified that he was afraid at that time, and that because of threats by Thomas and some others he had borrowed the gun from his father. [1203:2-1206:5].

Myers explained that fairly recently, because of an attack on a close friend, he had taken to carrying the gun with him much of the time. [1207:17-1210:2]. This was verified by others. [632:20-633:5; 1047:13-1049:2].

Following the shooting, Myers drove to his home, washed off some blood, and walked to a friend's home nearby. [1263:24-1265:24]. He then was driven to the Sheriff's office by two friends and was placed into custody. [1269:10-1270:5].

The State's pathologist testified that both bullet wounds to Thomas entered the left cheek, and that the paths of both were left to right and front to back. [160:4-11]. The pathologist further testified that the wounds could not have been inflicted from behind as Jones had testified. [160:1-13; 169:2-170:5]. He also testified that Thomas' body contained cocaine. [149:18-150:10].

Blood was smeared all over the left side of the truck, even up onto the cab, in the areas in which Myers said he and Thomas had struggled. [867:1-871:6]. There was blood all over Myers clothing and even on his watch. [871:7-879:13].

Myers was invariably described as a gentle peaceful person by all acquaintances who testified at trial, including the brother and good friend of Thomas. [537:19-538:6; 597:9-598:14]. Considerable evidence was presented which showed Thomas' history of violent, threatening and unpredictable behavior. [1086:2-20; 1092:8-1093:1; 1096:2-1101:6; 1107:16-1120:15; 1132:16-1136:20].

Darren Myers testified that despite his problems with Thomas at the bar months earlier, he had had no contact with him at all since that time. [1227:2-23]. Not one witness in the trial testified to any contact between Myers and Thomas since those earlier incidents, or professed to have knowledge of any dealings between them. Myers' testimony on this point was totally uncontradicted. There was no evidence of any motive for the shooting other than Myers' own testimony about the sudden attack on him in the dark by Thomas. Myers testified that he only left home to meet Jones briefly, as arranged, [1223:16-1224:7] and since he expected to return home shortly, and had just gotten up from a nap, he wore no socks or underwear, despite the January weather. [1224:21-1226:2]. Those who had been with him earlier saw nothing unusual in his behavior, as one might expect if wrongdoing were planned and reported he was pleasant and cheerful. [461:12-462:24; 634:1-635:9; 1043:11-1045:13].


ARGUMENT

I. The trial court's failure to instruct the jury as to which of the possible crimes were felonies, on the charge of using a firearm to commit a felony, was error.

The Appellant Darren Myers was charged with the use of a firearm to commit a felony in addition to the charge of first-degree murder. As to the murder charge, the Court also instructed the jury on the lesser-included offenses of second-degree murder and manslaughter. [Supp. T1-5]. As to the firearms charge, the Court instructed the jury that it must find that the State proved beyond a reasonable doubt four elements, among them:
1. The Defendant did use a firearm to commit a felony;
2. That the felony may be prosecuted in a Court of this State;
[Supp. T6].

There is not one word of evidence in the record of this trial which proves, or even suggests, that any of the possible homicide charges is a felony. Likewise, there is not one place in the Court's jury instructions [Supp. T1-15] where the jury is told which, if any, of the crimes they had been instructed upon is a felony. In coming to its verdict, therefore, there can be no question but that the jury was required to [and did] speculate on this question of law as to an essential element. It is probably fair to presume that the Court and the attorneys involved knew these were felonies. No such presumption exists in favor of the jury.

This Court has stated that:


A trial court, whether requested to or not, must instruct the jury on the law of the case, and failure to do so constitutes prejudicial error.

State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 [1989].

One might be inclined to say that, "Well, the jury did convict of second-degree murder, and we know that's a felony, so no harm is done.". We should examine this idea a little closer, however. The evidence in this case, it seems to this attorney at least, is far more indicative of manslaughter [or of first-degree murder even] than of second-degree murder. If a juror or jurors had extremely strong opinions as to the evil of firearms, but didn't know whether or not manslaughter was a felony, might he not be inclined to vote for a homicide charge he felt sure would support the firearm conviction?

It would seem that the concept of allowing juries to speculate as to the law regarding essential elements of crimes, even when, as here, we lawyers think the law is clear, has dangerous implications. If some "rule of reasonableness" is applied, rather than the strict approach of State v. Pierce, supra, where is the line to be drawn? A better approach is to require that at least as to the essential elements of a crime, the jury must be accurately instructed on the applicable law and not allowed to speculate.


II. The reasonableness of an accused's actions, alleged by him to be in self defense, are measured by the subjective belief he entertained as to their necessity, not by the objective standard of whether those actions were actually necessary.

Darren Myers conceded at trial that he shot Kervin Thomas, but alleged he did so in self defense. The whole trial essentially dealt with the self defense issue. In its Instruction No. 15 [Supp. T10], the trial court attempted to set forth the law applicable to self defense. That instruction stated, in part, that:

An element in this case is that the defendant did not act in self defense. The defendant did not act in self defense if the state proved beyond a reasonable doubt that any one of the following did not occur: [1] Kervin Thomas threatened or attempted death or serious bodily harm;...

The Appellant objected to this portion of Instruction No. 15 at the instruction conference, arguing that this language essentially told the jury that if they did not believe that Kervin Thomas was in fact attempting to kill or seriously harm Darren Myers, then self defense was not a justification. [1342:15-1346:11]

The Court's Instruction No. 15 was simply contrary to the law of this state, both as set forth in Neb. Rev. Stat. Section 28-1409 [Reissue 1989], and in case law. See State v. Sims, 213 Neb. 708, 331 N.W.2d 255. [1983]. The Court's Instruction permitted the jury to apply an objective standard and decide in the calm atmosphere of the courtroom whether or not Darren Myers actually needed to take the action he did. The evidence at trial showed, for example, that Thomas was apparently not armed. The relevant inquiry, however, is what Darren Myers believed that night when suddenly confronted by Thomas. Our law requires that his belief as to the necessity of his actions be reasonable, but nevertheless his belief is to be judged by a subjective standard.

The Court's Instruction No. 15 was the main self-defense instruction - it provided the methodology the jury was to work through in analyzing the self defense issue, and it allowed them, on its face, to find that self defense was not applicable if they weren't convinced that Kervin Thomas actually intended, or attempted to cause death or serious injury to Darren Myers.

This extremely important part of the self-defense instruction, we maintain, could not help but confuse the jury. It also, apparently, confused the prosecutor. Despite the discussion of this very point, and the Appellant's concerns about the instruction, during the instruction conference, the prosecutor proceeded to argue in his rebuttal as if an objective standard were to be applied:

Mr. Langvardt gave you parts of the self defense instruction, but there are other parts that you must look at equally carefully. Did the state prove beyond a reasonable doubt whether Kervin Thomas threatened or attempted to cause death or serious bodily injury of Darren Myers? There was certainly no threats. He himself says there were no threats. Did he attempt to cause Darren serious bodily harm down there that evening? Well, he claims that Kervin came after him, but only one person had a weapon, and that was Darren Myers, and that caused the death of Kervin Thomas. [1427:11-21].

The Court erred in giving Instruction No. 15, and in refusing Defendant's proposed Instructions No. 1 and No. 3 [Supp. T11,13] which would both have emphasized the subjective nature of the standard to be applied, and were in accord with the actual evidence presented at trial. The prosecutor's misstatement of the standard to be applied compounded the problem by assuring that the jury would be confused on this question.


III. A prosecutor's repeated attempts to inject evidence regarding drugs, drug use or drug dealing into a trial, without any evidence that such activities were connected to the crime in question. may have the cumulative effect of denying an accused a fair trial.

The prosecution in this case, being unwilling to accept Darren Myers' explanation of why he shot Kervin Thomas, was faced with the problem of having no other apparent motive for the shooting. The prosecution and law enforcement apparently decided that this shooting must somehow be drug related, and presented their case accordingly.

The first witness was David Jones, who was present at the time of the shooting. After asking him if he was acquainted with Darren Myers [14:7-15:2], he was then asked [1] was he familiar with the distribution of cocaine, [2] what are some words used in the trade, [3] does he recognize cocaine when he sees it [4] what does it look like, etc.. [15:11-16:4]. Throughout the rest of Jones' testimony he said nothing about drugs and, more importantly nothing whatsoever about drugs being in any way involved in the events in question - the drug discussion was merely left hanging there. This tarring by innuendo went on throughout the trial.

James Thomas, brother of the deceased, was asked about the practice of "ganking" someone - pretending to get drugs for someone and them simply keeping the money, and was asked to describe at some length an occasion when he did this to Myers. [531:20-535:25]. He was then asked whether his brother Kervin ever did such things to people and testified that he did. [536:1-6]. Then, in a technique which will be discussed later, the prosecutor elicited a number of negative responses to a series of questions regarding whether Kervin had done this to Darren Myers or owed Darren money. [536:7-20]. There was never one bit of testimony that Darren Myers and Kervin Thomas had some sort of drug dealings, that Thomas owed Myers money, or even that they had seen each other, except the implication intended by the prosecutor's questions. These were, on their face, proper questions and impossible to object to at the time since counsel for Defendant had no way of knowing then that no connection to this case would ever be shown.

A friend of Thomas, Paul Hunt, was called by the prosecution and asked at some length about Thomas getting cocaine, sometimes on credit, from a "Cindy". [587:12-591:16]. To this testimony Defendant objected. [591:23-592:20]. The prosecutor assured the Court relevance would be shown [592:23-593:2] and was allowed to proceed. [593:15-594:25; 599:6-601:22]. Eventually, Myers renewed his objective to this line of unconnected inquiry. [601:23-602:8]. The prosecutor's only expressed justification was that Myers and a Cindy Chavira were friends [602:10-16], but was allowed to continue on the condition it be connected up to this case. [602:21-603:1]. The testimony continued in this vein [603:10-605:10] until Myers' counsel objected again that no connection had been shown. [605:15-19]. All of this Paul Hunt drug testimony was finally ordered struck from the record on Appellant's motion days later, after the close of the State's case [1020:4-1022:5], and the jury was instructed to disregard it. [1022:13-1023:3]. There was never the slightest evidence connecting the subjects of this testimony to Myers or to the crime in question.

A Carol Arnold testified about Darren's fondness for a Cindy Chavira, and Darren's use of cocaine. [609:24-613:22]. Again, there was no connection ever shown between the matters testified to by Carol Arnold and the charge being tried.

When the State then called Cindy Chavira, counsel for Myers objected at length as to the trial by innuendo which appeared to be taking place. [614:25-615:25]. The prosecutor then proceeded to ask Chavira, regarding the night of the shooting,

Didn't you say to Mary on that occasion that Darren was out delivering some cocaine and bringing some money back?

thereby eliciting a "no" answer. [623:4-6]. No witness ever testified that Cindy Chavira had said Darren Myers was out delivering cocaine and bringing the money back.

The examples cited above are only examples. This Court can see from the record as a whole, that drug references permeated the trial. Had the State had the evidence to connect all this to Darren Myers and his shooting of Kervin Thomas many of these could have been proper questions. The problem for the defense is that it doesn't know at the time that the State has no connecting evidence.

As will be discussed hereafter, not one witness even hinted at any contact between Myers and Thomas in the several months prior to the shooting. Yet the State spent much of its time at trial trying to imply, knowing it had no evidence, that this shooting somehow arose out of a "drug deal". The cumulative effect of all this was to deny Darren Myers a fair trial. See Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 [1960]. This issue was raised in Appellant's Motion For New Trial, which should have been granted. [T7-9]


IV. A prosecutor's emphasis, by questions to his witnesses and his remarks to the jury, upon the accused's choosing not to make statements to law enforcement after being placed in custody violates the accused's constitutional riqht to remain silent.

At trial, the State called Rodney Wilkerson, an Adams County Deputy Sheriff, as a witness. He had been at the Sheriff's office the night of the shooting when Darren Myers turned himself in. [712:15-713:16]. When the prosecutor started to ask about Wilkerson's conversation with Myers, Myers' counsel approached the bench and stated his concerns about there being any testimony about Myers choosing not to give a statement, and the prosecutor was allowed to caution his witness privately so that no such thing was alluded to. [713:17-715:4].

Despite defense counsel's warning and statement of concern on this point, the prosecutor, not long thereafter, while questioning another Sheriff's deputy, Glenn Kemp, who was also present when Myers came to the Sheriff's office [744:8-745:4], asked this question regarding the conversations with Myers that night:

When Mr. Myers made that statement in response to your request, did he offer any explanation or excuse for the action he had taken?


[754:18-20]. The deputy's response was "None.". [754:21].


In his cross-examination of Darren Myers, the prosecutor asked the following:

Q: Did you have any marks on you when you went into the Sheriff's office?
A: Not that I know of.

[1313:6-8]. He then asked:

Q: Did you show the Sheriff any marks on your neck from his grabbing you by the the neck?,

compelling the immediate reply from the accused:

A: No, I didn't talk to anybody when I came in.


[1313:9-11]. It would seem unlikely that any warning to the jury could change the fact that this improper question compelled the Defendant to say he had chosen to remain silent. To suggest that the defense counsel should leap up, object, and ask that his own client's answer be stricken, would be to ignore the realities of criminal jury trial.

The prosecutor capped off his emphasis upon Darren Myers' not to talk to officers by discussing Myers' silence at some in his final argument. [1382:24-1383:8].

These repeated references to Myers' decision not to talk are serious violations of his rights under the Fifth Amendment to the U. S. Constitution. Doyle v. Ohio, 426 U.S. 610, 96 5. Ct 2240 [1976]. That seriousness has also been recognized by this Court. State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 [1985]; State v. Duis, 207 Neb. 851, 301 N.W.2d 587 [1981]. In the latter two cases the commentary was in reference to the accused's silence prior to his being in custody. That was not the case here. Myers was put into custody as soon as he came to the Sheriff's office [715:5-24], and was confined during his conference with the deputies.


V. A prosecutor is not allowed to make comments to the jury which express his personal beliefs as to the credibility of witnesses or the guilt of the accused.

During his initial closing argument to the jury the prosecutor concluded with the following statement:

But he had an opportunity to avoid that situation, that is Myers did, and he didn't do it. He shot the man. I think he shot him in cold blood. And I think you must find him guilty. [1385:12-15].

In his rebuttal argument he stated:

Now this is a difficult decision. It's before you now. I do not think he acted in self defense. My conclusion is that he deliberately killed this man. [1428:18-20].

His final statement to the jury in rebuttal was:

We're not trying David Jones, we're not determining whether he - what he did or didn't do that night. We've got to decide whether what he told the officers and what he told you is supported by their conclusions. I believe it was. And I believe that Darren Myers killed Kervin Thomas that evening and it was not required for his self-defense, and that therefore you must find him guilty. [1429:4-11].

These remarks by the prosecutor were clearly improper. This Court stated in State v. Lebron, 217 Neb. 452, 349 N.W.2d 918 [1984], that comments by a prosecutor may not "...embody a statement of personal belief in the defendant's guilt.". 217 Neb. at 460. See also Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 [1960]. No lawyer should make such comments as the personal belief of counsel are not relevant to the issues the jury is called upon to resolve. When they come from the prosecutor in a criminal case they would seem to be even more prejudicial in that many jurors surely perceive him as the representative of the public speaking in his official capacity. In the context of this case they added to the other improprieties which together denied Darren Myers a fair and impartial hearing of his claims of self defense.


VI. It is highly improper for a prosecutor to ask a series of questions which imply the existence of facts which the prosecutor knows he cannot support with evidence.

In this argument we have previously discussed the efforts of the prosecutor, without a shred of actual evidence, to turn this case into a killing arising out of some sort of drug transaction. A reading of the record as a whole will show that throughout the trial the Appellant was required to deal with insinuations or implications regarding "drugs" which the prosecution threw out but never connected to this case.

As mentioned previously, Darren Myers testified that he had had no contact with Kervin Thomas for months prior to the events of January 24, 1992. [1227:9-23; 1235:8-10; 1272:10-1273:9]. This testimony was completely uncontradicted - not one of the many witnesses at trial so much as claimed to have even heard of any contact between the two. Because of the prosecution's attempts to imply that this was a premeditated murder arising out of some sort of "drug deal" it was absolutely crucial for the defense that the lack of any dealings between Myers and Thomas be made crystal clear to the jury. As far as actual evidence goes, that fact was crystal clear. Showing that nothing was going on between the two might have been the most important point the defense had to make.

Darren Myers testified at trial. He was the defense's last witness except for the brief recall of a deputy sheriff. [1324:7-1326:6].

Near the end of his cross-examination of Darren Myers the prosecutor engaged in the following exchange with him [1305:25-1307:7]:



Q: Would you - let's see. You reported that you quit at P.J.'s sometime in late October, and would you please tell us about any contacts you had with Kervin Myers [sic] between that time and January 24?
A: I don't know Kervin Myers.
Q: Kervin Thomas, any contact you had from the time you quit a P.J.'s in October until January 24.
A: I didn't have any contact with him.
Q: None whatsoever?
A: Not to where I'd be talking to him.
Q: Did you see him on the street?
A: Oh, maybe passed him in my vehicle.
Q: Are you acquainted with a person by the name of Andrea Rutt?
A: No, I'm not.
Q: Do you know whether she was acquainted with Kervin Thomas?
A: No, I do not.
Q: Do you recall going to her house a week or two - or her apartment a week or two before this happened with Kervin Thomas?
A: No, I do not.
Q: No recollection of that at all?
A: I don't know an Andrea Rutt.
Q: A basement apartment on North Lincoln in Hastings?
A: No, I don't.
Q: Are you telling us you didn't go there?
A: I'm saying I don't know this person, I don't ...
Q: Well, did you ride anywhere with Kervin Thomas in your pickup truck during a week or two before Kervin was killed?
A: No.
Q: No recollection of that at all?
A: No, Sir.


After hearing this series of questions, counsel for Appellant knew that he wasn't acquainted with an Andrea Rutt either, but, as would most lawyers, assumed that he was shortly going to meet her. This was, or appeared to be, the commencement of an impeachment of Myers on a most important point. The appearance of Andrea Rutt [or anyone else with evidence of the things the prosecutor had just asked Myers about] was not to be. When the Appellant rested not long thereafter, the prosecution announced that it had no rebuttal evidence. [1329:9-12].

Counsel for Darren Myers immediately asked to approach the bench and objected that an impeachment had been commenced, that there had not even been an attempt to complete, and asked that the jury be admonished to disregard the questions. [1329:15-1330:1]. The prosecutor then stated:

Well, your honor, it was the basis for impeachment, but we just learned about this very late, and the person who could testify about it is not available.... [1330:3-6].

The Court then instructed the jury to disregard the questions. [1330:10-15].

In State v. Jackson, 217 Neb. 363, 348 N.W.2d 876 [1984], this Court dealt with a somewhat similar sequence of impeachment-type questions which the questioner, upon receiving denials, made no attempt to follow up. This Court there said:

An interrogator may not inquire of a witness 'Isn't it true that you told X that you saw Y shoot Z?' leaving the impression that such was the case, and then not call X to establish that fact. [217 Neb. at 366].

Of similar import is State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 [1982]. These cases reflect ABA Code of Professional Responsibility DR7-106[c][1], which forbids a lawyer's commencing an impeachment he knows he cannot complete.

This same basic principle is set forth in the American Bar Association Project On Standards For Criminal Justice, The Prosecution Function And The Defense Function, Section 5.7[d], page 9. In regard to the prosecution function it is there stated:


It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner knows he cannot support by evidence.


A similar series of unsupported but specific factual questions from a prosecutor was considered in State v. Flowers, 114 N.W.2d 78 [Minn. 1962]:

The prosecutor's conduct in asking questions of an accusatory nature, unsupported by any evidence, denied defendant a fair trial under the principles we laid down in State v. Nelson, 181 N.W. 850, 856... [114 N.W.2d at 81].

The Court in State v. Flowers, pointed out that since the prosecuting attorney was a public official the jury would naturally think he must have evidence to support his implications. The Court there further stated that:

... [Q]uestions which assume the existence of damaging facts may be put in such a manner, and with such persistency and show of proof, as to impress a jury there must be something wrong, even though the defendant denies it and there is no other evidence. The questions, and not the answers, were what the prosecution thought important. [114 N.W.2d at 81].

Numerous other cases exist, all of which have condemned the exact pattern complained of here. In People v. Dipaola, 115 N.W.2d 78 (Mich. 1962) , the Court said:

Obviously the determination as to appellant's credibility was of material importance. The conclusion may not be avoided that the question asked and repeated with reference to police records constituted prejudicial error requiring reversal of the conviction and the granting of a new trial. [115 N.W.2d at 79].

In Harris v. State, 394 N.E.2d 97 [Ind. 1979], the Court pointed out that there, as here, the defendant's credibility was crucial, and stated:

The potential which this type of improper question has for prejudice to the accused is enormous, particularly in a jury trial. The impression arising by innuendo from such questions can result in prejudice which cannot be cured by the sternest and timeliest of admonitions to a jury to disregard it. [394 N.E.2d at 100].

In reversing a conviction the Court in State v. Holsinger, 601 P.2d 1054 [Ariz. 1979] said, quoting from State v. Sengton, 182 P.2d 920 [Ariz. 1947], that:

To allow this sort of examination would be to allow the imaginative and overzealous prosecutor to concoct a damaging line of examination which could leave with the jury the impression that defendant was anything that the questions, by innuendo, seemed to suggest. If the questions were persistent enough and cleverly enough framed, no amount of denial on the part of a defendant would be able to erase the impression in the mind of the jury that the prosecutor actually had such facts at hand and that probably there was some truth to the insinuations. [601 P.2d at 1057,1058].

This series of questions implying specific factual knowledge on the part of the prosecutor could not have been other than prejudicial to Darren Myers, and require reversal of his conviction. In conjunction with the other irregularities discussed above, we find that he was to a great extent tried, and convicted, through innuendo, implication, and guilt by association rather than through actual evidence. The cumulative effect cannot be said not to have denied him the fair trial to which he was entitled.


VII. The sentencing of Darren Myers to life in prison was an abuse of the trial court's discretion.

The Appellant has asked the trial court to forward the report of Darren Myers' presentence investigation, and this Court is requested to review it, together with the evidence presented at trial. The presentence report shows no criminal history of any sort other than a juvenile case arising out of a joyriding incident involving several teenagers. Darren Myers was described by every witness at trial who had known him, and by all those contributing to the presentence report, as a kind, gentle, easy going individual. There was not the slightest hint in the presentence report that he was considered likely to engage in any further criminal conduct. The chief district probation officer, Robert Horton, who prepared the presentence report, recommended a sentence toward the minimum end of the sentencing range.

Despite this background, the trial court sentenced Darren Myers to life imprisonment. Neb. Rev. Stat. Section 28-105 [Reissue 1989] provides for a range of punishments for second degree murder of from 10 years to life imprisonment. While this sentence is not outside that range it is certainly the maximum allowed. Unless everyone convicted of this crime is to be required to receive this sentence, it is difficult to see how one of Myers generally exemplary background should receive the maximum.

A review of some of the more recent sentences for second degree murder is instructive. State v. True, 236 Neb. 274, 460 N.W.2d 668 [1990]; State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 [1988]; State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 [1986]; State v. Hunt, 214 Neb. 214, 333 N.W.2d 405 [1983]; and State v. McNichols, 210 Neb. 875, 317 N.W.2d 95 [1982] , all involved life sentences for second degree murder. In State V. True, State v. Suffredini and State v. McNicho1s the defendants all had substantial criminal records. In State v. Trevino the defendant was sentenced at the same time for the attempted murder of another victim. In State v. Hunt the murder was particularly brutal - the victim was stabbed 14 times, his throat was slit five times, and he was drowned in a puddle of water. Each of these cases where life was imposed are clearly distinguishable from that of Darren Myers, as is that of cult leader and multiple murderer Michael Ryan in State v. Ryan, 226 Neb 59, 409 N.W.2d 579 [1987]. The Court in that case discusses at some length the prolonged torture of the victim.

It would appear that in a majority of second degree murder cases the sentence is considerably less than life imprisonment. In all of the following cases the sentence was affirmed by this Court. In almost all of them the defendant had a criminal record and/or the crime was particularly brutal or unexcusable as compared to that in this case.
State v. Dean, 237 Neb. 65, 464 N.W.2d 782 [1991]: 10 years
State v. Threet, 231 Neb. 809, 438 N.W.2d 746 [1989]: 30 years
State v. Ettleman, 229 Neb. 220, 425 N.W.2d 894 [1988]: 30 years.
Morteney v. State, 210 Neb. 172, 313 N.W.2d 449 [1981]: 12 years.
State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 [1971]:20 years; 15 years for co-defendant.
State v. Kelly, 207 Neb. 295, 298 N.W.2d 370 [1980]:15 years.
State v. Johnson, 200 Neb. 760, 266 N.W.2d 193 [1978]:20 years.
State v. Jackson, 200 Neb. 827, 265 N.W.2d 850 [1978]:10 to 25 years.
State v. Rivera, 197 Neb. 629, 249 N.W.2d 914 [1977]:15-25 years.
State v. Barajas, 195 Neb. 502, 238 N.W.2d 913 [1976]:25 years.
State v. Pilgrim, 182 Neb. 594, 156 N.W.2d 171 [1968]:16 years.


It would appear that given the sentencing pattern in this state, Darren Myers' history, and the circumstances of this case, the sentence imposed here was arbitrary and an abuse of the Court's discretion.

_______________________________________

CONCLUSION

Almost all of the errors urged in this appeal were part Darren Myers' Motion For New Trial [T7-9]. That Motion For New Trial should have been granted. Even if none of these improprieties occurring at trial was sufficient in itself to require reversal, their cumulative effect clearly was to deny Appellant a fair trial. The judgment and sentence of the trial court should be reversed, and the case remanded for trial.
Respectfully sumitted,

ARTHUR R. LANGVARDT #12390
422 N. Hastings Avenue
Suite 105
Hastings, NE 68901
[402] 463-9819
Attorney for Appellant


Comments or Questions| Top of Article| Malice Index| Home Page


State's Brief

NO. S-92-1195
---------------------------------------------------------------------------------------------------------
IN THE
SUPREME COURT OF NEBRASKA
---------------------------------------------------------------------------------------------------------
STATE OF NEBRASKA,

Appellee,

V

DARREN LEE MYERS,
Appellant.
-------------------------------------------------------------------------------------------------------
APPEAL FROM THE DISTRICT COURT
OF ADAMS COUNTY, NEBRASKA
The Honorable Stephen R. Illingworth, District Judge
---------------------------------------------------------------------------------------------------------
BRIEF OF APPELLEE
--------------------------------------------------------------------------------------------------------
DON STENBERG, #14023
Attorney General
Donald A. Kohtz, #18946
Assistant Attorney General
2115 State Capitol
Lincoln, NE 68509-8920
Tel: (402) 471-2682
Attorneys for Appellee..




TABLE OF CONTENTS

Page
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 1
PROPOSITIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT

I. THE FAILURE TO OBJECT TO AN INSTRUCTION AFTER IT HAS BEEN SUBMITTED TO COUNSEL FOR REVIEW PRECLUDES RAISING AN OBJECTION ON APPEAL. . . . . . . . . . . . . . .12

II. PREJUDICIAL ERROR REGARDING JURY INSTRUCTIONS MAY NOT BE PREDICATED SOLELY UPON A PARTICULAR SENTENCE OR PHRASE IN AN ISOLATED INSTRUCTION, BUT MUST APPEAR FROM CONSIDERATION OF THE ENTIRE INSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. A PARTY CANNOT SILENTLY TOLERATE ERROR, GAMBLE ON A FAVORABLE RESULT, AND THEN COMPLAIN THAT HE OR SHE GUESSED WRONG. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

IV. SINCE NO OBJECTIONS WERE MADE TO TESTIMONY WHICH ALLEGEDLY REFERRED TO THE DEFENDANT'S DECISION TO REMAIN SILENT, ANY CLAIM OF ERROR HAS BEEN WAIVED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

V. THE DEFENDANT FAILED TO MAKE A TIMELY OBJECTION TO THE PORTIONS OF THE PROSECUTOR'S CLOSING ARGUMENT HE NOW FINDS OBJECTIONABLE AND SUCH FAILURE IS THE EQUIVALENT TO FAILING TO MAKE AN OBJECTION AT ALL, AND THUS THE DEFENDANT HAS WAIVED ANY RIGHT TO COMPLAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

VI. A CONVICTION WILL NOT BE SET ASIDE UNLESS THE DEFENDANT MEETS HIS BURDEN OF SHOWING THAT THE CLAIMED ERROR CREATED ACTUAL PREJUDICE RATHER THAN THE MERE POSSIBILITY OF PREJUDICE. . . . . . . . . . . . . . . . . . .36

VII. THE SENTENCE IMPOSED BY THE DISTRICT COURT WAS NOT EXCESSIVE NOR DID IT CONSTITUTE AN ABUSE OF DISCRETION. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39

VIII. ERRORS ASSIGNED BUT NOT DISCUSSED WILL NOT BE CONSIDERED BY THE NEBRASKA SUPREME COURT. . . . . . . . . . . . . .46

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 47

PROOF OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48




TABLE OF AUTHORITIES

Cases Cited:
Chapman v. California, 386 U.S. 18 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Doyle v. Ohio, 426 U.S. 610 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 23, 28-30
Rose v. City of Lincoln, 234 Neb. 67, 449 N.W.2d 522 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
State ex rel. Spire v. Strawberries, Inc., 239 Neb. 1, 473 N.W.2d 428 (1991) . . . . . . . . . . . . . . . . . . . 46
State v. Bartholomew, 212 Neb. 270, 322 N.W.2d 432 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
State v. Beins, 235 Neb. 648, 456 N.W.2d 759 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 26, 27, 34, 35
State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990) . . . . . . . . . . . . . . . . . . . .... . . . . . . . . . . . . . . .29
State v. Bronson, 242 Neb. 931, 496 N.W.2d 882 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
State v. Brown, 235 Neb. 10, 453 N.W.2d 576 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 19, 26, 38
State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
State v. Cole, 231 Neb. 420, 436 N.W.2d 209 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 14
State v. Egger, 234 Neb. 175, 449 N.W.2d 558 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . 41
State v. Garrett, 191 Neb. 439, 216 N.W.2d 170 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
State v. Grant, 242 Neb. 364, 495 N.W.2d 253 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 15
State v. Greeno, 230 Neb. 568, 432 N.W.2d 547 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
State v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
State v. Hall, 242 Neb. 92, 492 N.W.2d 884 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 41
State v. Lohman, 237 Neb. 503, 466 N.W.2d 534 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 13
State v. Melton, 239 Neb. 576, 477 N.W.2d 154 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 46
State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16
State v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 13
State v. Nearhood, 233 Neb. 767,448 N.W.2d 399 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
State v. Riley, 242 Neb. 887, 497 N.W.2d 23 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 42
State v. Ruyle, 234 Neb. 760, 452 N.W.2d 734 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
State v. Thomas, 238 Neb. 4, 468 N.W.2d 607 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
State v. Valdez, 239 Neb. 453, 476 N.W.2d 814 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 35, 36, 38
State v. Zima, 237 Neb. 952, 468 N.W.2d 377 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
United States v. Hastings, 461 U.S. 499 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30


Statutes Cited:
Neb. Rev. Stat. § 28-105(1) (1989) . . . . . . . . . . . . . . . . . . 40
Neb. Rev. Stat. § 28-304(2) (1989) . . . . . . . . . . . . . . . . . . 40
Neb. Rev. Stat. § 28-1205(2) (1989) . . . . . . . . . . . . . . . . . 40
Neb. Rev. Stat. § 28-1205(3) (1989) . . . . . . . . . . . . . . . . . 41
Neb. Rev. Stat. § 29-2308 (1989) . . . . . . . . . . . . . . . . . . . .35




STATEMENT OF THE CASE

The Appellee (hereinafter State) accepts the Appellant's (hereinafter Defendant) Statement of the Case.

PROPOSITIONS OF LAW
I.

FAILURE TO OBJECT TO AN INSTRUCTION AFTER IT HAS BEEN SUBMITTED TO COUNSEL FOR REVIEW WILL PRECLUDE RAISING AN OBJECTION ON APPEAL ABSENT PLAIN ERROR INDICATIVE OF A PROBABLE MISCARRIAGE OF JUSTICE.
State v. Lothian, 237 Neb. 503, 466 N.W.2d 534 (1991).

II.

PREJUDICIAL ERROR REGARDING JURY INSTRUCTIONS MAY NOT BE PREDICATED SOLELY UPON A PARTICULAR SENTENCE OR PHRASE IN AN ISOLATED INSTRUCTION, BUT MUST APPEAR FROM CONSIDERATION OF THE ENTIRE INSTRUCTION OF WHICH THE QUESTIONED SENTENCE OR PHRASE IS A PART, AS WELL AS CONSIDERATION OF OTHER RELEVANT INSTRUCTIONS GIVEN TO THE JURY.
State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

III.

TO ESTABLISH REVERSIBLE ERROR FROM A COURT'S REFUSAL TO GIVE A REQUESTED INSTRUCTION, AN APPELLANT HAS THE BURDEN TO SHOW THAT (1) THE TENDERED INSTRUCTION IS A CORRECT STATEMENT OF THE LAW; (2) THE TENDERED INSTRUCTION IS WARRANTED BY THE EVIDENCE; AND (3) THE APPELLANT WAS PREJUDICED BY THE COURT'S REFUSAL TO GIVE THE TENDERED INSTRUCTION.
State v. Grant, 242 Neb. 364, 495 N.W.2d 253 (1993).

IV.

IN AN APPEAL BASED ON THE CLAIM OF AN ERRONEOUS INSTRUCTION, THE APPELLANT HAS THE BURDEN TO SHOW THAT THE QUESTIONED INSTRUCTION WAS PREJUDICIAL OR OTHERWISE ADVERSELY AFFECTED A SUBSTANTIAL RIGHT OF THE APPELLANT.
State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 (1991).

V.

IN ORDER TO PRESERVE A CLAIMED ERROR IN ADMISSION OF EVIDENCE, A LITIGANT MUST MAKE A TIMELY OBJECTION WHICH SPECIFIES THE GROUND OF THE OBJECTION TO THE OFFERED EVIDENCE. IF A PARTY DOES NOT MAKE A TIMELY OBJECTION TO THE EVIDENCE, THE PARTY WAIVES THE RIGHT TO ASSERT PREJUDICIAL ERROR CONCERNING THE EVIDENCE RECEIVED WITHOUT OBJECTION.
State v. Brown, 235 Neb. 10, 453 N.W.2d 576 (1990).

VI.

SILENCE AFTER MIRANDA WARNINGS AT TIME OF ARREST MAY NOT BE USED AT TRIAL WHEN DEFENDANT TESTIFIES.
Doyle v. Ohio, 426 U.S. 610 (1976).

VII.

THE FAILURE TO MAKE A TIMELY OBJECTION TO CLOSING ARGUMENT IS EQUIVALENT TO FAILING TO MAKE AN OBJECTION AT ALL AND WAIVES ANY RIGHT TO COMPLAIN.
State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).

VIII.

A CONVICTION WILL NOT BE SET ASIDE UNLESS THE DEFENDANT MEETS HIS BURDEN OF SHOWING THAT A CLAIMED ERROR CREATED ACTUAL PREJUDICE RATHER THAN THE MERE POSSIBILITY OF PREJUDICE.
State v. Valdez, 239 Neb. 453, 476 N.W.2d 814 (1991).

IX.

A SENTENCE IMPOSED WITHIN STATUTORY LIMITS WOULD NOT BE DISTURBED ON APPEAL ABSENT AN ABUSE OF DISCRETION.
State v. Hall, 242 Neb. 92, 492 N.W.2d 884 (1992);
State v. Riley, 242 Neb. 887, 497 N.W.2d 23 (1993).

X.

TO BE CONSIDERED BY THE SUPREME COURT, AN ERROR MUST BE ASSIGNED AND DISCUSSED IN THE BRIEF OF ONE CLAIMING THAT PREJUDICIAL ERROR HAS OCCURRED.
State v. Melton, 239 Neb. 576, 477 N.W.2d 154 (1991).

STATEMENT OF FACTS

On or about January 24, 1992, between the hours of 8:00 - 9:00 p.m., the victim, Kervin Thomas (hereinafter Thomas or victim), was shot in the head at close range by Darren Myers (hereinafter Myers or Defendant) (137:3-12; 1253:19-1258:24; 133:2-134:21; 168:10-21; E33-39: 142, 142, volume VII; 61:25-62:5). The shooting took place southwest of Hastings, Adams County, Nebraska (791:11-18; 307:2-10; 315:5-316:18; 106:18-107:12; 95:1-96:14; 76:22-77:20). David Jones (hereinafter Jones) was the sole eyewitness to the homicide (30:3-20; 59:5-65:25).

The events of January 24, 1992, started when Kervin Thomas met David Jones at Jones' apartment (16:15-21:10). They both went to the Olive Saloon where they had a beer (21:15-24:6; 373:16-374:18). They returned to Jones' apartment because Jones had to use the bathroom to urinate (24:15-25:14). A few minutes later, shortly after 7:00 p.m., Myers appeared at Jones' apartment door (25:15-26:23). Thomas opened the door because Jones was still in the bathroom and Myers entered the apartment (26:8-23). After Jones exited the bathroom he handed Myers $10.00, which he owed him from a personal loan (26:2-28:2).

They all three decided to leave the apartment in the defendant's pickup truck (29:24-32:19). Myers agreed to drive despite being allegedly afraid of Thomas because of a prior incident at the bar where Myers worked as a bouncer (1320:13-23; Id.; 1227:9-17). Thomas rode in the middle seat and Jones was on the passenger side (31:17-32:3). The three of them stopped at a Gas and Shop (32:20-21). Myers exited the vehicle and made a phone call (33:9-34:18). Thomas went into the store and bought cigarettes and a couple of small bottles of Jack Daniels' whiskey (33:14-15; 35:3-22; 1233:23-25). They assumed the same positions in the vehicle that they initially had at the apartment (36:4-23). Thomas asked Myers "if he got through" and Myers responded that he had (40:17-41:5).

Next, they stopped at an Apco gas station where Myers placed air into the front left tire of the truck (37:3-38:22). After they left the Apco gas station, Thomas handed Myers a $100 bill and a $10 bill, and Myers gave him nothing in return (41:9-42:20).

Myers drove his pickup truck to a rural area under no threat or force, and elected where he stopped (1240:22-1246:3; 1290:14-1292:21). David Jones testified that there was no fight or harsh words between the defendant or Kervin that evening prior to the shooting (57:18-58:20). Jones also testified that he never saw Kervin Thomas with any type of weapon on the evening in question (263:12-264:25). Myers stopped his pick up truck on a minimum maintenance road southwest of Hastings, Nebraska (42:21-45:20). Myers, who is originally from Nelson, Nebraska, was familiar with the minimum maintenance roads from his experience in rural Nebraska (1291:2-15). Jones, on the other hand, was from the Washington, D.C. area (9:11-12), and Thomas was from Omaha, originally (507:12-25). Myers indicated to the other occupants in the vehicle that he had to urinate (45:21-22). Myers then pulled his vehicle into the lateral driveway, came to a stop, turned off the engine, and left the headlights on (45:23-47:12).

Myers got out of the truck and urinated near the front, left side of the vehicle (46:11-17). After he finished, he came back to the truck and retrieved his spotlight and looked at the left rear tire (47:13-48:19). Myers claimed that the tire was low and ordered Thomas and Jones to walk toward a lighted farmhouse, that was across the field, to telephone for help (48:20-49:17). Thomas, who has a wooden leg left work early that day because of the pain it was causing him (521:9-525:22), and Jones and Thomas started to walk, but Myers quickly called them back for their opinion on the driveability of the left rear tire on the driver's side (49:19-55:20). This was a different tire than the one he had earlier put air in at the Apco gas station which was the left front tire (37:20-38:15; 209:15-210:14). All three went back to look and they agreed that the tire was sufficiently inflated for driving back into town (54:1-56:11; 210:7-23).

Jones and Thomas proceeded to walk to the north end of the pick up around the back (56:12-25). Jones made it to the passenger door (57:1-4). Thomas was standing a few feet behind Jones (56:6-59:17). Jones, who heard no sounds of argument or struggle, turned and saw Myers fire the gun at Thomas (Id.; 59:17-61:22). Myers pulled the gun from the back of his jeans where he had a concealed weapon that was covered by his shirt (1294:11-1296:20). Jones testified that he saw the defendant shoot Kervin Thomas in the head and became frightened and ran away and as he was running he heard one more shot being fired (211:11-215:14; 60:5-67:9). After Jones fled into the corn stubble field approximately 80 yards, he heard Kervin holler "help me David" (64:1-65:7). After Kervin made that statement Jones heard a second shot (65:8-9). Jones then noticed a spotlight that was searching him out in the field (66:14-25). Jones ran another 20 feet and then heard the Defendant holler for Jones to come back, that he (Defendant) would not hurt him.(65:11-66:25). Jones ran to a near-by farmhouse to safety (67:1-14).

Shortly after the shooting, Jones arrived at the Consbruck residence (68:1-69:9). He convinced Brent Consbruck to take him to the Armor Food Plant in Hastings, Nebraska. (Id.; 69:9-17). On the trip into town, Jones constantly looked back for Myers and had insisted that Consbruck take a .22 weapon with him in case Myers stopped him (272:1-274:19). Once they arrived at the Armor Plant, Jones met his girlfriend Sherrin Arce (69:9-70:15). As they drove together through Hastings, Jones was lying down in the front seat of the vehicle to avoid being spotted by the defendant (285:20-286:11; 288:21-25) They stopped at a 7-11 and Sherrin Arce called 911 anonymously, to report what had happened (287:4-288:19; E28:371, 371, volume VII).

Jones wanted to go to Dr. and Mrs. Ganow's home since he knew and trusted them (70:16-1:7). He arrived there and they decided to call the Sheriff's Office and subsequently transported Jones down to the Sheriff's Department (71:7-15; 359:13-364:6; 368:13-370:4). After Jones was transported down to the Sheriff's Department he was informed that Myers was present in the building and Jones insisted upon a bullet proof vest to wear during the identification process because he was afraid of Myers (363:16-24; 750:2-751:25).

Myers, after the homicide and futile attempt to find Jones, went back to his. apartment (1263:12-1264:19). He carefully unloaded the gun and cautiously placed it back into' a kitchen drawer (1264:19-1265:12). He parked his bloody truck in the back of his residence (1266:19-22; E43: 571, 571, volume VII). Several minutes later, he went over to Cindy Chavira's apartment, located near his residence (1265:14-24). Chavira, who had supplied Myers with cocaine, Becky Harris, and Mary Chemlka were all present at Cindy's apartment when he arrived (1266:4-14). Myers asked Cindy to have Becky leave (1266:13-14). Myers related to Cindy and Mary the events of the evening in question (1267:19-1268:7). The Defendant before turning himself in to the Adams County Sheriff's Department told his friends that he shot and killed the victim (1266:4-1268:7; 1049:3-1050:5; 417:9-422:12; 627:9-628:10). The Defendant also told his friends that Kervin did not have a weapon nor did Kervin ever clearly threaten him that evening (427:6-12; 429:2-11). While at the Sheriff's Department the Defendant volunteered to Investigator Kemp that he shot Kervin Thomas (754:9-14). Cindy Chavira and Mary Chemlka decided to make arrangements to have the defendant transported to the Sheriff's Department (1268:8-1269:13).

After Myers shot Thomas, he went back over to his apartment, went to Chavira's apartment, and finally appeared at the Sheriff's Department after approximately 45 minutes had elapsed (1307:8-1308:16).

Jones later led the Sheriff's Department investigators to the scene of the crime (76:4-77:20). Medical personnel arrived at approximately 11:00 p.m. and pronounced Thomas dead (94:1-98:23; 105:22-111:19; 80:13-15). The medical personnel stated that rigormortis had set in which indicated that death took place one to two hours earlier (98:8-17). The local law enforcement officers secured the scene and evidence was collected (77:16-80:7; 306:10-311:8; 315:16-318:16; 322:23-324:12; 325:8-328:13; 330:24-333:21; 336:24-338:18; 341:15-343:4; 345:22-353:3; 558:18-560:22; 570:5-571:25; 573:23-578:13; 580:11-583:9; 647:3-709:5; 728:3-730:21; 743:13-854:2; 963:13-990:22; 1003:8-1004:2; 1011:2-1012:4).

At trial the Defendant testified that he was aware that neither Thomas nor David Jones were armed with any type of weapon the night in question (1295:10-24; 1297:1-24; 1318:9-20). The Defendant was the only one armed with a firearm that evening (1295:25-1296:25). The firearm in question was a .9 millimeter semi-automatic handgun (El: 661, 661, volume VII).

The Defendant's victim was a black male, 26 years of age, standing 6'2", weighing 185 pounds, with a wooden right leg (509:23-510:9; E89:1160,.ll63, volume VII). James Thomas, the victim's older brother testified that his brother Kervin was not able to run on account of his artificial leg (511:1-25). James also testified that Kervin would be off balance a lot, even when he was in a standing position (512:1-4).

The Defendant was a former high school and college football player, construction worker, bouncer at a bar, a white male 22 years of age, standing 6'3 in height, and weighed 270 pounds at the time of the homicide (1015:11-20; 1182:3-15; 1183:9-18; 1188:8-16; 744:8-745:6; 1~85:12-1287:3). The Defendant also testified that he was aware of Kervin's bad leg (1195:1-7; 1246:10-11). The Defendant also testified that Kervin did not know that the Defendant had a gun in the waistband of his pants the evening in question (1312:22-24).

The Defendant's defense centered around his contention that Kervin Thomas threatened his life and that he killed in self-defense (1318:9-18). Myers claimed that he had to push Thomas back twice before he shot him (1252:9-1253:7). However, according to the Defendant's testimony, at no time did Kervin pull any type of weapon on the Defendant during this imaginary fight (1318:19-20). The Defendant testified on direct examination that Kervin Thomas grabbed his throat during this imaginary fight (1251:8-13), but when he stripped out of his street clothes at the Sheriff's Department, no one saw any marks or wounds on the Defendant's body (879:1-3). On cross-examination, the Defendant testified that he did not have any marks on his neck (1313:6-8).

The pathologist, Dr. Jerry Jones, testified that it would have been very difficult for Kervin Thomas to attack since he was gurgling up blood because the bullets had torn several veins and arteries in the neck area (164:2-165:10). Dr. Jones concluded that Thomas choked to death on his own blood which was a result from the two shots to his head (137:3-24). Dr. Jones also testified that the gun, due to powder residue on Thomas' face, was fired from 1 1/2 to 2 feet from Thomas' head (140:2-25). He also said the shots were fired from front to back and had a downward angle (144:23-25; E33-39:142, 142, volume VII).

Investigator Glenn Kemp, examined the murder scene. Kemp, who was established at trial as an expert in the area of footprint identification, looked for signs of struggle between any of the parties, but found none (866:1-19; 742:5-743:12).

Even the Defendant admitted at trial that he had room to step away from an allegedly charging Kervin Thomas who was unarmed, with only one good leg, weighing approximately 75 to 100 pounds less than Defendant (1318:23-25). The jury rejected the Defendant's theory of the case and his lame excuse to use deadly force in self-defense (T5-6).

The State proved beyond a reasonable doubt that the Defendant killed Kervin Thomas intentionally but without premeditation on January 24, 1992, in Adams County, Nebraska, with a .9 millimeter semi-automatic handgun, and the Defendant did not act in self-defense when he killed Kervin Thomas. Id.

In lieu of repetition, the State has set forth the relevant facts for the remaining arguments in its presentation to this Court.

The State feels obliged to note that at page 8 of the defendant's brief, which is a part of the Defendant's Statement of the Facts, there is an incorrect statement of the record. The first sentence of the third paragraph on page 8 is called into question. That sentence reads as follows: "Blood was smeared all over the left side of the truck, even up onto the cab, in the areas in which Myers said he and Thomas had struggled (867:1-871:6)." (Defendant's brief, p. 8). The fact of the matter is the blood was smeared on the right side of the truck which would be the passenger side not the left side according to the photographs taken of the pick up and the evidence adduced at trial (E43: 571, 571, volume I VII; 867:1-871:6; E77:882, 882, volume VII; E78-80:881, 882, volume VII).

ARGUMENT
I.

THE FAILURE TO OBJECT TO AN INSTRUCTION AFTER IT HAS BEEN SUBMITTED TO COUNSEL FOR REVIEW PRECLUDES RAISING AN OBJECTION ON APPEAL.

A.

Pursuant to Assignment of Error II(C), the Defendant argues that the trial court erred in giving no instructions from which the jury would know that any of the possible crimes instructed upon were felonies under Nebraska law. (Defendant's brief, p. 2). Specifically, in his brief at pp. 9-10 the Defendant argues that the trial court failed to instruct the jury which crimes if any were a felony which was a predicate for the crime of use of a firearm in the commission of a felony.

B.

The Defendant was charged with murder in the first degree and use of a firearm in the commission of a felony (T2-3). The jury returned guilty verdicts for murder in the second degree and use of a firearm in the commission of a felony (T5-6). At issue is jury instruction No. 9 which is the instruction which defines the crime of use of a firearm in the commission of a felony and sets forth the elements (Supp.T 6-7). At the jury instruction conference, the Defendant's attorney did not object to jury instruction No.9 which he now claims was prejudicial (1338:20-1339:3).

C.

The Nebraska Supreme Court has stated that "the law is clear that failure to object to an instruction after it has been submitted to counsel for review will preclude raising an objection on appeal absent plain error indicative of a probable miscarriage of justice." State v. Lohman, 237 Neb. 503, 505, 466 N.W.2d 534, 536 (1991); see also State v. Cole, 231 Neb. 420, 436 N.W.2d 209 (1989) (failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal); State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981) (failure to timely object to jury instructions prohibits a party on appeal from contending instructions were erroneous). [A] party who desires more precise jury instructions must request them at the time the instructions are being considered and not an appeal." State v. Buchanan, 210 Neb. at 24, 312 N.W.2d at 687.

D.

"[A]ll of the instructions must be read as a whole, and if the instructions, when read together, correctly state the law, are not misleading, and adequately state the issues, there is no prejudicial error." State v. Cole, 231 Neb. at 423, 436 N.W.2d at 211. This court has stated in State v. Morley, 239 Neb. 141, 153, 474 N.W.2d 660, 669 (1991), that "upon review of a jury instruction, an appellate court is to consider how reasonable jurors could have understood the instruction as a whole." It defies common sense if the jury would not have considered the crime of homicide a felony offense. Since the Defendant did not request the court to clarify the instruction, and also failed to make an objection on the record, he has waived any right to claim error on appeal.


II.

PREJUDICIAL ERROR REGARDING JURY INSTRUCTIONS MAY NOT BE PREDICATED SOLELY UPON A PARTICULAR SENTENCE OR PHRASE IN AN ISOLATED INSTRUCTION, BUT MUST APPEAR FROM CONSIDERATION OF THE ENTIRE INSTRUCTION.

A.

Pursuant to Assignment of Error II(A) and (B), the Defendant argues that the trial court's instruction No. 15 as given was contrary to the law governing self-defense and that the trial court improperly refused his proposed instructions relating to self-defense. (Defendant's Brief, p. 2).

B.

"Prejudicial error regarding jury instructions may not be predicated solely upon a particular sentence or phrase in an isolated instruction, but must appear from consideration of the entire instruction of which the questioned sentence or phrase is a part, as well as consideration of other relevant instructions given to the jury." State v. Copple, 224 Neb. 672, 699, 401 N.W.2d 141, 159 (1987).

When an appellant challenges the propriety of a jury instruction his burden is three-fold: To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that
(1) the tendered instruction is a correct statement of the law;
(2) the tendered instruction is warranted by the evidence; and
(3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
State v. Grant, 242 Neb. 364, 375, 495 N.W.2d 253, 260 (1993).

At issue is the trial court's instruction No. 15 which is set forth as follows:

An element in this case is that the defendant did not act in self defense. The defendant did not act in self defense if the state proved beyond a reasonable doubt that any one of the following did not occur:
(1) Kervin Thomas threatened or attempted to cause death or serious bodily harm; or
(2) the defendant neither consented to any such use of force against him nor provoked any such use with the intent of using deadly force in response; or
(3) the defendant reasonably believed that his use of deadly force was immediately necessary to protect him against death or serious bodily harm; or
(4) before using deadly force the defendant either tried to get away or did not try because he reasonably did not believe he could do so in complete safety.

The fact that the defendant 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. This belief applies to all four (4) paragraphs above.

(Supp. T10). The Defendant submitted a proposed instruction which is set forth in relevant part as follows:

An element in this case is that the Defendant did not act in self-defense.
If [the force used] was deadly force, then the Defendant did not act in self-defense if the state proved beyond a reasonable doubt any one of the following did not occur:
[1] Kervin Thomas attacked Defendant or threatened Defendant with death or serious bodily harm; or (Supp. T11).

C.

During the instruction conference the Defendant's attorney objected to the trial court's instruction No. 15, specifically the reference in subpart (1) that "Kervin Thomas threatened or attempted to cause death or serious bodily harm" (Supp. T10; 1342:15-1346:11). In his brief, the Defendant argues that the trial court's instruction No. 15 permitted the jury to apply an objective standard "whether or not Darren Myers actually needed to take the action he did." (Defendant's brief, p.1l). The Defendant's argument is without merit.

" In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.'" State v. Messersmith, 238 Neb. 924, 937, 473 N.W.2d 83, 93 (1991), quoting Rose v. City of Lincoln, 234 Neb. 67, 74, 449 N.W.2d 522, 528 (1989). "If the jury instructions, when read together, correctly state the law, are not misleading, and adequately state the issues, there is no prejudicial error." State v. Being, 235 Neb. 648, 654, 456 N.W.2d 759, 763 (1990). "The trial court, whether requested or not, must instruct the jury on the law of the case." State v. Ruyle, 234 Neb. 760, 774, 452 N.W.2d 734, 743 (1990).

D.

The trial court's instruction No. 15 sufficiently informed the jury that as long as the Defendant had a reasonable basis for what he believed and that he acted reasonable under the circumstances as they exist at the time of the crime in question: that is that the Defendant reasonably believed that Kervin Thomas threatened or attempted to cause death or serious bodily harm to the Defendant. The trial court properly instructed the jury that the focus was upon the reasonable belief of the Defendant. The Defendant has failed to establish that instruction No. 15 was erroneous. In addition, he has failed to demonstrate that he was prejudiced by instruction No. 15. The Defendant's mere statement that instruction No. 15 was prejudicial, without proof of prejudice, does not constitute a sufficient ground for reversal of a conviction. State v. Bartholomew, 212 Neb. 270, 277, 322 N.W.2d 432, 436-37 (1982).

E.

In addition, the Defendant has failed to demonstrate that his tendered instruction was a correct statement of the law, that his tendered instruction was warranted by the evidence, or that he was prejudiced by the court's refusal to give his tendered instruction. The state asserts that the Defendant's contentions are without merit and that the instruction given in the case, specifically No. 15, taken as a whole adequately cover the issues.

Even though the questioned instruction was perceived by the Defendant as undesirable and erroneous, instruction No. 15 by itself did not so infect the entire trial that the resulting conviction violated any of the Defendant's constitutional rights.


III.

A PARTY CANNOT SILENTLY TOLERATE ERROR, GAMBLE ON A FAVORABLE RESULT, AND THEN COMPLAIN THAT HE OR SHE GUESSED WRONG.

A.

Pursuant to Assignment of Error III(A), the Defendant argues that the prosecutor persistently and repeatedly put before the jury irrelevant and non-probative evidence relating to drugs, drug use and drug dealing which had the effect of confusing the jury. (Defendant's brief, p. 2).

At pp. 13-15 of the Defendant's brief, he cites to portions of the testimony of David Jones, James Thomas, Paul Hunt, Carol Arnold, and Cindy Chavira. The Defendant did not object to the testimony he cited with reference to David Jones, James Thomas, Carol Arnold, or Cindy Chavira. However the Defendant did object to the testimony of Paul Hunt. Defendant's assertion that the trial court struck from the record Paul Hunt's testimony is only partially true. The court only struck the part of Mr. Hunt's testimony with regard to his trips to Cindy Chavira's home with the deceased to purchase cocaine (1022:13-1023:3).

On page 15 of his brief, the Defendant contends that no witness ever testified that Cindy Chavira had said Darren Myers was out delivering cocaine and bringing the money back. However, the record demonstrates that Cindy Chavira's friend, Mary Chmelka testified that she was at Cindy Chavira's residence during the evening of January 24, 1992, and recalls asking Cindy where Darren Myers was at and Cindy told her that "Darren had received some cola from her on Thursday evening, and that--for his brother or brother-in-law, and that he was to be bringing back the money that night. She was expecting him to bring it back that Friday night, the night of the murder." (643:17-21; 642:4-643:16). Ms. Chmelka further testified that when Cindy used the word cola, she meant cocaine. (643:22-23).


B.

The Nebraska Supreme Court has stated: that in order to preserve a claimed error in admission of evidence, a litigant must make a timely objection which specifies the ground of the objection to the offered evidence. If a party does not make a timely objection to the evidence, the party waives the right to assert prejudicial error concerning the evidence received without objection.

State v. Brown, 235 Neb. 10, 14-15, 453 N.W.2d 576, 579 (1990). The only evidence objected to at trial by the Defendant cited at pp. 13-16 of his brief was with regard to Paul Hunt and that testimony was stricken with regard to the drug transactions between Cindy Chavira and Kervin Thomas, the victim (1021:14-1022:2). "[A] party cannot silently tolerate error, gamble on a favorable result, and then complain that he or she guessed wrong." State v. Zima, 237 Neb. 952, 956, 468 N.W.2d 377, 380 (1991).

C.

While proof of motive is not an element of first degree murder, any motive for the crime charged is certainly relevant to the State's proof of the intent element. Motive is defined by Black's Law Dictionary (6th Ed., 1990, p. 1014) as distinguished from "intent" as: "the moving course, the impulse, the desire that induces criminal action on the part of the accused." Similarly, this court has defined motive as that which leads or tempts the mind to indulge in a criminal act. [quotation marks omitted].

State v. Bronson, 242 Neb. 931, 940, 496 N.W.2d 882, 890 (1993); see also State v. Garrett, 191 Neb. 439, 216 N.W.2d 170 (1974) (evidence as to motive is generally relevant where intent is an element of the crime or the proof is circumstantial in nature).

D.

The Defendant argues on appeal that the cumulative effect of the prosecution's implication that the shooting in question somehow rose out of a drug deal denied the Defendant a fair trial. The conclusion that the Defendant was denied a fair trial has no support in the record. "[A] defendant is not constitutionally entitled to receive a 'perfect trial,' only a fair and constitutional trial. [quotation mark omitted] State v. Hochstein, 216 Neb. 515, 519, 344 N.W.2d 469, 472 (1984), cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 156." State v. Nearhood, 233 Neb. 767, 776, 448 N.W.2d 399, 405 (1989).

Since the Defendant did not object at trial to any of the evidence he finds objectionable on appeal, he has waived any right to complain. Moreover, while motive was not an element of the crime charged, evidence of motive was certainly relevant to the state's burden of proof on the intent element of first degree murder. As the state is entitled to all reasonable inferences drawn from the evidence, it is reasonable to conclude that the shooting focused around a drug deal.

It was well known in the community that the three individuals involved, David Jones (the eyewitness), Kervin Thomas (the victim), and Darren Myers (the convicted killer), were all involved in drugs (15:7-16:4; 10:9-19; 47 536:20; 599:6-601:6; 610:25-613:22; 642:17-643:23). Cindy Chavira told Mary Chmelka that the defendant, on the evening of the homicide in question, was out collecting drug money, and Cindy Chavira was expecting him to bring back the money (642:7-643:23). The Defendant himself admitted on direct examination that he used cocaine (1213:16-1214:19). He also admitted dealing cocaine the evening prior to the homicide in question (1217:4-1219:20). The cocaine that the defendant sold to David Jones on January 23, 1992, came from Cindy Chavira. Id.

James Thomas, Kervin Thomas' older brother testified that the Defendant pressured him to sell cocaine to him, and James took the Defendant's money with no intention of delivering cocaine to him since he had already told him that he could not find any cocaine and wanted to teach the Defendant a lesson for bothering him(531:20-535:25). The street term for this technique is "ganking" (531:25-532:9). James Thomas "ganked" Darren Myers in November of 1991 (532:12-534:5). After James Thomas did not return with the drugs Darren Thomas asked John Trotter to accompany him over to James Thomas' residence to retrieve his money or get his drugs back (471:1-476:14). On the way over to James Thomas' residence, the Defendant informed Trotter that he had his gun with him as going to get his package (cocaine) or get his money back (476:17-477:5). Also during the course of this conversation the Defendant said something to the effect that "they had beaten me once before" (477:6-12). John Trotter understood "they" meant that James or Kervin Thomas had taken the Defendant's money, failed to deliver the goods/cocaine (477:13-478:9).

There is no merit. to the Defendant's assignment of error III(A).


IV.
SINCE NO OBJECTIONS WERE MADE TO TESTIMONY WHICH
ALLEGEDLY REFERRED TO THE DEFENDANT'S DECISION TO REMAIN
SILENT, ANY CLAIM OF ERROR HAS BEEN WAIVED.

A.

Pursuant to assignment of error III(B), the Defendant argues that he was denied a fair trial wherein the prosecutor in questioning witnesses and in closing argument commented upon his declination to give any statement to law enforcement authorities following his arrest. (Defendant's brief, p. 2).

Defendant concludes at p. 17 of his brief that the repeated references to his decision not to talk was a Fifth Amendment violation of the United States Constitution pursuant to Doyle v. Ohio, 426 U.S. 610 (1976) (silence after Miranda warnings at time of arrest may not be used at trial when Defendant testifies).

The testimony and portions of the closing argument complained of on appeal is set forth as follows:
(Glenn Kemp, Deputy Criminal Investigator for the Adams County Sheriff's Office on direct by the prosecutor).

A. I stood in the interview room while Investigator Wilkerson completed the Miranda Warnings and the advisement of statement of rights. At which time Darren Myers indicated that he would talk to us, but he wanted some time to compose himself. At that time I asked Darren Myers if he would tell me where the gun was so I could collect it for evidence, and there would be no tampering or damage.
Q. What was his response to that?
A. He said that he would take me to the gun.
Q. Did you agree to that plan?
A. No, I did not. I advised him it wouldn't be wise for him to leave the sheriff's office and asked for a consent to search after he told me the gun was at his home.
Q. Did you proceed on that basis?
A. No, I did not.
Q. What action did you take next?
A. After Investigator Wilkerson and I left the interview room, I told Investigator Wilkerson that I would prefer we got a search warrant rather than going on the consent, and I met with Donna Fegler from the Adams County Attorney's Office and Major Simmons and Captain Peterson at that time.
Q. Did you have any subsequent conference with Mr. Myers?
A. Yes, I did.
Q. When did that occur?
A. It would have been around 3 a.m., Saturday, January 25th, 1992.
Q. What was the purpose for that conference?
A. I went to the interview room with chemicals and equipment to check for trace metal and gunpowder residue on Darren Myers' hands.
Q. Was Mr. Myers still in the interview room at that time?
A. Yes, he was.
Q. And did you conduct that test?
A. After a brief conversation with Mr. Myers, yeah, the test was completed.
Q. And did you explain to him what the purpose for the test was?
A. Yes, I did.
Q. And what was his response?
A. First he asked me why I needed to do the test. And I told him what the purpose was, was to see if there was gunpowder residue on his hands or trace mental where somebody had held a metal object, like a gun. At that time Mr. Myers told me that I could go ahead and do it, but it really wasn't necessary, because he had shot him.
Q. Did you take any other action at that time?
A. Yes. We went ahead and completed the trace metal and the gunpowder residue test.
Q. When Mr. Myers made that statement in response to your request, did he offer any explanation or excuse for the action he had taken?
A. None. (752:19-754:21) (emphasis supplied).
(Defendant on cross-examination by prosecutor)
Q. Did you have any marks on you when you went into the sheriff's office?
A. Not that I know of.
Q. Did you show the sheriff any marks on your neck from his grabbing you by the neck?
A. No, I didn't talk to anybody when I came in.
(1313:6-11).
( A relevant part of closing argument by prosecutor now deemed erroneous.)

I think it's also interesting that when he did talk to law enforcement officers eventually, you recall that Officer Kemp conducted a test to determine whether he had held some metal and some little -- some kind of a test and Officer Kemp said there was evidence that, I think, his right index finger reflected having touched metal, but it was inconclusive as to his left hand. And at that time when Officer Kemp did that, Myers, who already had his rights explained to him offered, to Kemp, "I shot him," and I don't remember his exact words, but my recollection he said -- was that he said something like, "Why are you bothering with this nonsense?"

Now, at that point, once again, if a guy was claiming -- if he were claiming that he shot a guy because he was defending himself from him, wouldn't he have said, "Look at the marks on my neck," or, "He was trying to get me," or, "Look at this, look what he did," or, "He was trying to knock me down." He didn't say that. He just said, "Why brother, I shot him." Now, you know, he's explained later what he says happened, but why didn't he explain that to the officer on the scene when he was first in custody in the sheriff's office? (1382:12-1383:8).

The Defendant failed to object to the portions of testimony and closing argument which he now finds objectionable on appeal (754:9-21; 1313:6-11; 1382:24-1383:8). As stated earlier in this brief "in order to preserve a claimed error in admission of evidence, a litigant must make a timely objection which specifies the ground of the objection to the offered evidence." State v. Brown, 235 Neb. at 14-15, 453 N.W.2d at 579. Since the defendant did not make a timely objection to Investigator Kemp's testimony and the Defendant's cross-examination testimony, he has waived any right to assert prejudicial error. The defendant has also failed to object to the portion of the prosecutor's closing argument he now claims was in error. The failure to make a timely objection to comments raised in closing argument, is the equivalent to failing to make an objection at all. Thus, the Defendant has waived any right to complain. See State v. Benzel, 220 Neb. at 477, 370 N.W.2d at 511.

In the alternative, without waiving the above-mentioned procedural argument, the record submitted on appeal demonstrates that the Defendant, between 10:00 - 11:00 p.m. on January 24, 1992, turned himself over to the Adams County Sheriff's Department (744:8-745:16; 1269:10-23). Once the Defendant entered the back door of the Sheriff's Department he was frisked for weapons and was taken into Investigator Kemp's office and they let him change into a jail uniform (745:9-16). After changing clothes, the Defendant was taken into an interview room of the Adams County Sheriff's Department (750:2-4).

Investigator Wilkerson obtained an Adams County statement of rights form and informed the Defendant of his Miranda rights (752:7-12; 715:12-716:8). The explanation of his rights included the right to remain silent which the Defendant acknowledged he understood. Id. After completing the Miranda warnings and the advisement of the statement of rights, the Defendant indicated that he would talk to Investigators Wilkerson and Kemp, but he wanted some time to compose himself (752:19-23). At that time, Investigator Kemp asked the Defendant if he would tell him where the gun was so it could be collected as evidence (752:23-25). The Defendant said he would take Investigator Kemp to the gun (753:1-2). Investigator Kemp decided not to allow the Defendant to leave the Sheriff's Department to retrieve the gun (753:3-8).

Investigator Kemp conferred with Investigator Wilkerson and they discussed the preference to get a search warrant instead of retrieving the gun on the Defendant's consent (753:9-12). Then Investigator Kemp met with Donna Feglar, a member of the Adams County Attorney's Office and Major Simmons and Captain Peterson (753:13-15). From approximately 11:00 p.m., on Friday, January24, 1992, until 3:00 a.m. on Saturday, January 25, 1992, the Defendant was left sitting in the interview room (753:25-754:1).

Then at approximately 3:00 a.m. on Saturday, Investigator Kemp approached the Defendant who was still in the interview room and informed him he was going to perform a trace metal and gunpowder residue test on the Defendant's hands (753:16-754:1). Investigator Kemp explained to the Defendant the purpose of the test, which was to see if there was gunpowder residue or trace metal on the Defendant's hands from handling a gun (754:5-12). At that time the Defendant told Investigator Kemp that he "could go ahead and do it, but it really wasn't necessary, because he had shot him [Kervin Thomas]." (754:13-15).

The trace metal and gunpowder residue test was then completed (754:15-17). The test showed that a metal object had came into contact with the Defendant's right index finger (944:10-945:9). The next question asked by the prosecutor to Investigator Kemp is what the Defendant now claims is erroneous. The prosecutor inquired of Investigator Kemp whether the Defendant offered any explanation or excuse for shooting the victim and Investigator Kemp said there is no explanation offered (754:18-21).

This was not a Doyle violation because it was not a reference to the Defendant's silence post-Miranda, because the Defendant had waived his right to remain silent and had yet to subsequently invoke his right to remain silent after he had waived it.

With regard to the next claimed reference, the prosecutor asked the Defendant on cross-examination whether he had any marks on him when he went to the Sheriff's Office and the Defendant replied "not that I know of" (1313:6-8). The prosecutor then asked the Defendant if he had shown the Sheriff any marks on his neck from the victim grabbing his neck and the Defendant replied "no, I didn't talk to anybody when I came in. (1313:9-10). On direct examination the Defendant had testified that the victim grabbed his throat (1251:8-13). This above-reference was not a Doyle violation. It is not a Doyle violation because the answer did not ask for a response of whether the Defendant talked or did not talk after being Mirandized. If the answer cannot be a violation, then the question cannot be a violation either.

The prosecutor doing closing argument made reference to the two above referenced portions of testimony now deemed objectionable. If they were not Doyle violations in and of themselves, then the references in closing argument cannot be erroneous either.

B.

In the alternative, if this court decides that it was error to admit the testimony of Investigator Kemp, the cross-examination of the Defendant, and the prosecutor's closing argument, the State contends that it was harmless error.

The Nebraska Supreme Court, in State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990), held that the improper admission of evidence constitutes harmless error where the evidence is cumulative and there is other competent evidence to support the conviction. Under the facts of this case, the admission of the investigator's testimony, the Defendant's cross-examination testimony, and the prosecutor's closing argument, was harmless error.

The United States Supreme Court has held that a constitutional error does not automatically require reversal of a conviction. Chapman v. California, 386 U.S. 18 (1967). The Court has applied the harmless error analysis to various cases, including improper comment on defendant's silence at trial. See United States v. Hastings, 461 U.S. 499 (1983). The Hastings Court held that it is the duty of the reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional errors. Id. In evaluating whether a prosecutorial comment as to an accused's failure to testify is harmless error, a reviewing court must make a determination as to whether absent the prosecutor's allusion to the failure of the defense to proffer evidence to rebut the testimony of the victims it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. Id.

The State contends that the test used in United States v. Hastings, should be applied to the testimony and the portion of the closing argument now deemed objectionable. In the context of United States V. Hastings, the issue is one of the right to remain silent. Even in Doyle v. Ohio, the case relied upon by the Defendant, the Court suggested that the harmless error analysis could have been applied under the circumstances of the case.

Applying the harmless error analysis, to the facts in the present case, we ask this court to determine that the elicited testimony does not require reversal. Assuming arguendo, that but for the fact that the defendant's determination to remain silent was commented upon, the record supports the conclusion that the jury would have found him guilty, even if there was error injected into the trial by the prosecutor. The use of the elicited testimony, by the prosecutor, was to impeach the credibility of the Defendant. Notwithstanding that particular testimony, there was additional testimony from the Defendant himself at trial and from the Defendant's friends that he committed the homicide with a .9 millimeter semi-automatic handgun absent the right to claim self-defense.

Taking the view most favorable to the prevailing party, the evidence adduced at trial demonstrates that the Defendant picked the turf where the murder occurred. He drove his pickup to a rural area under no threat or force, and he elected where he stopped (1240:22-1246:3; 1290:14-1292:21). The Defendant shot the victim, Kervin Thomas, twice in the head at close range (137:3-12; 1253:19-1258:24; 133:2-134:21; 168:10-21; E33-39: 142, 142, volume VII). The shooting took place southwest of Hastings, Adams County, Nebraska, on January 24, 1992, between 8:00-9:00 p.m. (791:11-18; 307:2-10; 315:5-316:18; 106:18-107:12; 95:1-96:14; 76:22-77:20; 61:25-62:5).

The Defendant before turning himself in to the Adams County Sheriff's Department told his friends that he shot and killed the victim (1266:4-1268:7; 1049:3-1050:5; 417:9-422:12; 627:9-628:10). The Defendant also told his friends that Kervin Thomas did not have a weapon, nor did Kervin ever verbally threaten him (427:6-12; 429:2-11). While at the Sheriff's Department the Defendant volunteered to Investigator Kemp that he shot Kervin Thomas (754:9-14). The sole eyewitness to the homicide in question was David Jones, who testified that there was no fight or harsh words between the defendant and Kervin prior to the shooting (57:18-58:20). Jones also testified that he never saw Kervin with any type of weapon on the evening in question (263:12-264:25). Jones testified that he saw the Defendant shoot Kervin in the head and he became frightened and ran away and as he was running he heard one more shot being fired (211:11-215:14; 60:5-67:9). After Jones fled into the corn stubble field approximately 80 yards, he heard Kervin holler 'Help me David" (64:1-65:7). After Kervin made that statement he got shot for the second time (65:8-9). Jones ran another 20 feet and then heard the Defendant holler for Jones to come back, that he (Defendant) would not hurt him (65:11-66:25). Jones ran to a near-by farm house to safety (67:1-14).

The defendant himself testified that he was aware the night in question that neither Kervin or David Jones, were armed with any type of weapon (1295:10-24; 1297:1-24; 1318:9-20). The Defendant was the only one armed with a firearm (1295:25-1296:25). The firearm in question was a .9 millimeter semi-automatic handgun (El:661, 661, volume VII). The Defendant's victim was a black male, 26 years of age, standing 6'2", weighing 185 pounds, with a wooden right leg (509:23-510:9; E89: 1160, 1163, volume VII). James Thomas, the victim's older brother testified that his brother Kervin was not able to run on account of his artificial leg (511:1-25). James also testified that Kervin would be off balance a lot, even when he was in a standing position (512:1-4).

The Defendant was a former high school and college football player, construction worker, bouncer at a bar, a white male 22 years of age, stood 6'3" in height, and weighed 270 pounds at the time of the homicide (1015:11-20; 1182:3-15; 1183:9-18; 1188:8-16; 744:8-745:6; 1285:12-1287:3). Defendant also testified that he was aware of Kervin's bad leg (1195:1-7; 1246:10-11). The Defendant also testified that Kervin did not know that the Defendant had a gun in the waist band of his pants the evening of question (1312:22-24).

The Defendant's whole case centered around his contention that Kervin threatened his life and that he killed in self-defense (1318:9-18). However, according to the Defendant's testimony at no time did Kervin pull any type of weapon on the Defendant during this imaginary fight (1318:19-20). The Defendant testified on direct examination that Kervin Thomas grabbed his threat during this imaginary fight (1251:8-13), but when he stripped out of his street clothes at the Sheriff's Department, no one saw any marks or wounds on the Defendant's body (879:1-3). On cross-examination, the Defendant testified that he did not have any marks on his neck (1313:6-8).

Even the Defendant admitted at trial that he had room to step away from an unarmed person, with only one good leg, weighing approximately 75 to 100 pounds less than defendant (1318:23-25); from an allegedly charging Kervin Thomas. The jury rejected the Defendant's theory of the case and his lame excuse to use deadly force in self-defense (T5-6).

The State proved beyond a reasonable doubt that the Defendant killed Kervin Thomas intentionally but without premeditation on January 24, 1992, in Adams County, Nebraska, and that the Defendant did not act in self-defense when he killed Kervin Thomas.


V.
THE DEFENDANT FAILED TO MAKE A TIMELY OBJECTION TO
THE PORTIONS OF THE PROSECUTOR'S CLOSING ARGUMENT HE NOW
FINDS OBJECTIONABLE AND SUCH FAILURE IS THE EQUIVALENT TO
FAILING TO MAKE AN OBJECTION AT ALL, AND THUS THE
DEFENDANT HAS WAIVED ANY RIGHT TO COMPLAIN.

A.

Pursuant to Assignment of Error III (C), the Defendant argues he was denied a fair trial by reason of prosecutorial misconduct wherein the "prosecutor, in closing argument, stated his personal belief that Appellant did not act in self-defense and his personal belief in the guilt of Appellant." (Defendant's Brief, p. 2). At page 18 of the Defendant's brief he sets forth three portions of the prosecutor's closing argument which he alleges were improper as they allegedly express the prosecutor's personal belief (1385:12-15; 1428:18-20; 1429:4-11). The record on appeal demonstrates that after all three of the instances which the Defendant now complains were prejudicial, there was never an objection (1385:12-15; 1428:18-20; 1429:4-11).

B.

This Court in State v. Benzel, 220 Neb. 466, 477, 370 N.W.2d 501, 511 (1985), addressed a similar claim wherein the Defendant was arguing that the prosecutor in closing argument injected his personal beliefs and inflamed the passion of the jury. This Court noted that the Defendant in State v. Benzel as the Defendant in the present case did not object to remarks at the time they were made nor any time prior to the jury being sequestered for deliberation. The Court ruled that "(t]he failure to make a timely objection (to closing argument] is equivalent to failing to make an objection at all and waives any right to complain." State v. Benzel, 220 Neb. at 477, 370 N.W.2d at 511; See also State v. Greeno, 230 Neb. 568, 571-72, 432 N.W.2d 547, 550 (1988) (Failure to assert a timely objection to the prosecutor's closing remarks at the time of trial constitutes a waiver of the objection).

C.

Even though defense counsel did not move for a mistrial, "[t]he general rule is that remarks of the prosecutor in final argument which do not mislead or unduly influence the jury do not rise to a level sufficient to granting a mistrial." State v. Benzel, 220 Neb. at 478, 370 N.W.2d at 511. "Before it is necessary to grant a mistrial due to prosecutorial misconduct, the defendant must show that a 'substantial miscarriage of justice has actually occurred.' Neb. Rev. Stat. § 29-2308 (1989); State v. Wounded Arrow, 207 Neb. 544, 300 N.W.2d 19 (1980)." State v. Valdez, 239 Neb. 453, 457, 476 N.W.2d 814, 817 (1991). This Court also in Valdez, stated that "[t]he conduct of a prosecutor which does not mislead or unduly influence a jury and thereby prejudice the rights of the defendant does not constitute misconduct. State v. LeBron, 217 Neb. 452, 349 N.W.2d 918 (1984)." Id.

"A conviction will not be set aside unless the defendant meets his burden of showing that a claimed error created actual prejudice rather than the mere possibility of prejudice." State v. Valdez, 239 Neb. at 457, 476 N.W.2d at 817. The Defendant has failed to demonstrate that he suffered any prejudicial error from the prosecutor's comments made in closing argument.

D.

Assuming for the purposes of argument that the prosecutor's comments were erroneous, they were not so egregious as to affect the trial with a prejudicial error, especially in view of the overwhelming evidence of the Defendant's guilt. Moreover, it is more likely than not, that the prosecutor was drawing deductions from the evidence or drawing inferences therefrom.

VI.
A CONVICTION WILL NOT BE SET ASIDE UNLESS THE
DEFENDANT MEETS HIS BURDEN OF SHOWING THAT THE CLAIMED
ERROR CREATED ACTUAL PREJUDICE RATHER THAN THE MERE
POSSIBILITY OF PREJUDICE.

A.

Pursuant to Assignment of Error III(D), the Defendant argues he was denied a fair trial by reason of prosecutorial misconduct and that the prosecutor, in his cross-examination of the Defendant, put to him a series of questions implying specific factual knowledge on his part which was in direct contradiction to the Defendant's testimony, knowing that he could not support the acquisitions in such questions with evidence. (Defendant's brief, pp. 2-3).

In his argument at pp. 19-24 in his brief, the Defendant argues that the prosecutor commenced impeaching the Defendant which implied the existence of a factual predicate which the examiner knew he could not support by evidence. At issue was the Defendant's cross-examination testimony which was previously set forth at pp. 20-21 of the Defendant's brief, which is a series of questions and answers between the Defendant and the prosecutor. The prosecutor inquired of whether the Defendant had seen Kervin Thomas, the victim, with a woman by the name of Andrea Rutt, a week or two before the homicide in question (1306:5-25).

The Defendant denied knowing any person by the name of Andrea Rutt (1306:22). Shortly after this question and answer session between the Defendant and the prosecutor, the Defendant concluded his case-in-chief and rested (1328:6). Consequently, the prosecutor informed the court that it had no rebuttal (1329:13). The Defendant's attorney then objected to the prosecutor's cross-examination testimony with regard to Andrea Rutt (1329:20-1330:1).

In response, the prosecutor stated that he just learned about the fact that Andrea Rutt was not available to testify and had no objection to striking the cross-examination testimony of Myers with regard to Andrea Rutt (1330:3-6). Thereafter the court ruled and informed the jury that the cross-examination testimony of the Defendant with regard to the reference to Andrea Rutt should be disregarded in its entirety (1330:10-21).

B.

"This court has stated that in order to preserve a claimed error in admission of an evidence, a litigant must make a timely objection which specifies the ground of the objection to the offered evidence." State v. Brown, 235 Neb. 10, 14-15, 453 N.W.2d 576, 579 (1990). Defendant's attorney did not object to the prosecutor's cross-examination of the Defendant with regard to the questions pertaining to Andrea Rutt and Kervin Thomas at pp.1305 -1307 of the Bill of Exceptions. Since the defendant failed to make a timely objection to the evidence he now deems objectionable on appeal, he "waives the right to assert prejudicial error concerning the evidence received without objection." Id.

C.

Moreover, in view of the fact that the court struck the prosecutor's attempt to impeach the Defendant with regard to whether or not he had gone to her apartment a week or two before the homicide in question with Kervin Thomas, the victim; where is the error?

"A conviction will not be set aside unless the Defendant meets his burden of showing that the claimed error created actual prejudice rather than the mere possibility of prejudice." State v. Valdez, 239 Neb. at 457, 476 N.W.2d at 817 (1991). It is the State's position that the prosecutor's attempt to impeach the Defendant with regard to Andrea Rutt was not improper. When he later found out that she was not available to testify at trial when it came time for rebuttal, the prosecutor conceded said testimony should be stricken and the jury so instructed (1330:3-6). The court properly instructed the jury to disregard the testimony in its entirety and there is no reason to believe that the jury did not do the same (1330:10-21).

D.

"The defendant must prove that the alleged error actually prejudiced him, rather than creating only the possibility of prejudice." State v. Groves, 239 Neb. 660, 614, 471 N.W.2d 189, 199 (1991). At this point in time, all the Defendant has proved is (1} the prosecutor attempted to impeach the Defendant, and (2) that after the prosecutor found out that his rebuttal witness was not available to testify at the time of rebuttal conceded that said testimony should be stricken from the record which was properly done so by the trial court.

All the defendant has alleged at this point in time on appeal is a possibility of prejudice. He does not prove that any error occurred or that he suffered any actual prejudice as a result of that error which required a reversal in this action.

VII.
THE SENTENCE IMPOSED BY THE DISTRICT COURT WAS NOT
EXCESSIVE NOR DID IT CONSTITUTE AN ABUSE OF DISCRETION..

A.

Pursuant to Assignment of Error IV, the Defendant argues that the sentence imposed by the trial court was excessive and constituted an abusive discretion, (Defendant's Brief, p. 3). The state asserts that the sentence of incarceration imposed upon the Defendant was proper considering the circumstances and serious nature of this crime. The Defendant admittedly shot and killed the victim in the present case and the only issue is. What degree of homicide was he guilty of committing.

He was charged with First Degree Murder and use of Weapon in the Commission of a Felony (T2-3). However, the jury returned a guilty verdict for Second Degree Murder and Use of a Weapon in the Commission of a Felony (T5-6). Murder in the second degree is a Class lB felony. Neb. Rev. Stat. § 28-304(2) (1989). A Class IB felony is punishable by a maximum sentence of life imprisonment, with a minimum of 10 years imprisonment. Neb. Rev. Stat. § 28-105(1) (1989).

B.

The Defendant received a life sentence to imprisonment for the crime of second degree murder and a term of 5 to 15 years for the crime of the use of a weapon in the commission of a felony (1484:10-25). The sentences were ordered to be served concurrently given credit for time served, and ordered to pay costs of the action. Id.

Use of a weapon to commit a felony is a Class III felony. Neb. Rev. Stat. § 28-1205(2) (1989). A Class III felony is punishable by a maximum term of 20 years imprisonment, or a $25,000 fine, or both, with a minimum of 1 year imprisonment. Neb. Rev. Stat. § 28-105(1) (1989). The Defendant only received a sentence of incarceration of not less that 5 nor more than 15 years incarceration under the jurisdiction of The Nebraska Department of Correctional Services for the conviction Of use of a weapon in the commission at a felony (1484:16-20).

The State feels obligated to inform this court that the sentence ordered by the district court for the crime of use of a firearm in the commission of a felony is clearly erroneous. The trial court ordered the defendant to serve his sentence of not less than five nor more than 15 years period of incarceration concurrently with the underlying felony of murder in the second degree (1484:10-25). Neb. Rev. Stat. § 28-1205(3) states that "[t]he crime defined in this section shall be treated as a separate and distinct offense from the felony being committed, and sentences imposed under the provisions of this section shall be consecutive to any other sentence imposed." (Emphasis supplied ). This same issue came up earlier in State v. Egger, 234 Neb. 175, 449 N.W.2d 558 (1989). In Egger, the defendant was convicted of making a terroristic threat and use of a firearm in the commission of that felony and was not sentenced to a separate consecutive term on the firearm charge as reguired by statute. The Nebraska Supreme Court in Egger remanded the matter back down to the district court for resentencing. However, our discussion from this point forward is still applicable to the life sentence for murder in the second degree in which the defendant was convicted.

The Nebraska Supreme Court has stated that a sentence imposed within statutory limits would not be disturbed on appeal absent an abuse of discretion. State v. Hall, 242 Neb. 92, 95-96, 492 N.W.2d 884, 886 (1992); State v. Riley, 242 Neb. 887, 888-89, 497 N.W.2d 23, 25 (1993).

In Riley, the Nebraska Supreme Court stated: "[J]udicial abuse of discretion' means that the reasons or rulings of the trial judge are clearly untenable and deny a just result to the defendant." Id. 242 Neb. at 889, 497 N.W.2d at 25. In State v. Riley, supra, the court held that a sentencing court is allowed to look at the whole picture of the Defendant's life in conjunction with the totality of the circumstances underlying the crime.

In considering a sentence, the sentencing court is not limited in its discretion to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992); State v. Wounded Arrow, 240 Neb. 44, 480 N.W.2d 205 (1992).

In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Bell, supra; State v. Smith, 240 Neb. 97, 480 N.W.2d 705 (1992). The seriousness of the offense as well as the amount of violence used in the commission of a crime are important factors in determining the appropriateness of a sentence. State v. Wounded Arrow, Supra.
Id.
, 242 Neb. at 889-90, 497 N.W.2d at 25.

The defendant has prior convictions for criminal mischief (unauthorized use of a propelled vehicle), minor in possession, five speeding convictions, and negligent driving (Presentence Investigation Report (P.I.) P.3). Myers informed the probation officer who prepared the presentence investigation report that he smoked marijuana as a "reality break" and when he snorted cocaine he became hyper and numb (PI, p. 10). The Defendant's friends or acquaintances all stated that the Defendant used cocaine (PI, pp. 24-26). Some of his friends went so far to state that the Defendant was obsessed with Cindy Chavira and that he would do anything to please her. Id. Cindy Chavira was a known cocaine user and dealer (PI, p. 24). A former co-worker of Myers stated that approximately nine days before the homicide in question the Defendant showed him his gun and told him he was collecting money, presumably from drug sales (PI, p. 25). An acquaintance of both Cindy Chavira and the Defendant stated that the Defendant was a fun and caring person, until the drugs 'altered" him (PI, p. 26). The same acquaintance also did not believe the Defendant could have killed anyone unless Cindy Chavira's name came up and the Defendant flipped. Id. A polygraph test showed that David Jones, the sole eyewitness, was telling the truth about the incident in question (PI, p. 95).

At the sentencing hearing the court stated on the record its reasons for his sentence as set forth below:

You are a 23-year-old man with a year and a half to two years of college. You did have some problems as a juvenile, but not extensive problems. As to your motivation for the offense, I'm not sure if we really know. The jury did not accept your claim of self-defense, nor do I. You could have easily been convicted of first degree murder on this case. But the nature of the offense and the violence are the two factors that make you an unsuitable candidate for probation. I find that imprisonment is necessary because a lesser sentence than imprisonment would depreciate the seriousness of your crime and would promote disrespect for the law.

The presentence shows that you're a drug user, you sold drugs, and you have committed a murder. Now the probation officer in his presentence indicates that a sentence closer to the minimum than the maximum would be appropriate. But I want to show no disrespect towards that officer, but I cannot accept that recommendation for the following reasons: First even a life sentence, sir, does not mean life, I'm sure your attorney knows that, a life sentence is Less than life. And to give you a specific term of years would minimize what you've done. To give you less -- to give you the minimum sentence is not acceptable because I, unlike the probation officer, was able to watch the witnesses, hear their testimony, view their demeanor, and the probation officer was not able to do this. And what I believe is minimized in that recommendation is the seriousness of your crime in light of all these circumstances.

Mr. Myers, you took a life, and you show little or no remorse for taking that life in that presentence. You have several letters from family and friends who depict you as a small-town young man who was not street smart. But to the contrary, some of your friends indicate you were heavy into drugs prior to this incident. You cannot be into drugs to the extent you were and not become street smart real fast, and this is shown by the fact that once you had been taken in a drug deal, you vowed would never happen again. So you went to your father and you got a gun for protection, that's what you contend you got it for, you continued to use drugs.

And on the night of the murder, you picked the turf where the murder occurred. The night of the murder you went to collect on drugs that you had sold to Mr. Jones and you came armed. You said you were afraid of this victim, but the facts are that you drove your pickup to a rural area under no threat or force, you elected where you stopped, and then you shot him twice in the head saying you were defending yourself against a victim which you outweighed by 75 to 100 pounds, who had an artificial leg, and the victim was unarmed.

Now, I've given you the reasons why you are an unsuitable candidate for probation. The violent nature of this crime would minimize -- or to give you a minimum sentence would minimize that.(1482:5-1484:9).

A sentence of life imprisonment for the crime of second degree murder does not exceed the maximum sentence allowed by law. There is nothing in the record submitted on appeal to indicate that the trial court abused its discretion in imposing the sentence it did. As stated above the court set forth its reasons for imposing a sentence of life imprisonment.

The sentence imposed by the trial court was not excessive nor did it constitute an abuse of discretion. The trial court's reasons or rulings were clearly tenable. Nor was he denied a just result. Taking into consideration that this is a homicide case and that the Defendant openly admitted that he shot and killed the victim, and that the jury determined that the state proved beyond a reasonable doubt that the Defendant did not act in self-defense, it cannot be said that the trial court abused its discretion in sentencing the Defendant to life imprisonment.

VIII.
ERRORS ASSIGNED BUT NOT DISCUSSED WILL NOT BE
CONSIDERED BY THE NEBRASKA SUPREME COURT.

The Defendant's assignments of error are set forth at pp. 1-3 of his brief. He has failed to address his first (I) assignment of error.

The Nebraska Supreme Court has held that "[e]rrors assigned but not discussed will not be considered by the Supreme Court. State ex rel. Spire v. Strawberries, Inc., 239 Neb. 1, 14, 473 N.W.2d 428, 438 (1991); see also State v. Thomas, 238 Neb. 4, 11, 468 N.W.2d 607, 612 (1991); Neb.Ct.R. of Prac. 9D(1)(d) (Rev. 1992). "To be considered by the Supreme Court, an error must be assigned and discussed in the brief of one claiming that prejudicial error has occurred. State v. Melton, 239 Neb. 576, 578, 477 N.W.2d 154, 155 (1991). Thus, the State contends that the Defendant has waived review of his first assignment of error.


CONCLUSION

For the reasons noted above we respectfully request that this Court affirm the rulings of the trial court and affirm the Defendant's conviction and sentence in all respects.
Respectfully submitted,
STATE OF NEBRASKA, Appellee,
BY DON STENBERG, #14023
Attorney General
BY_______
Donald A. Kohtz, #189467
Assistant Attorney General
2115 State Capitol
Lincoln, Nebraska 68509-8920
Tel: (402) 471-2682
Attorneys for the Appellee.


Comments or Questions| Top of Article| Malice Index| Home Page


The Court's Decision


STATE OF NEBRASKA,
APPELLEE,
v.
DARREN LEE MYERS,
APPELLANT.

244 Neb.905, 510 N.W.2d 58

Filed January 14, 1994. No. S-92-1195

©1994, By Peggy Polacek, Reporter of the Supreme Court



Appeal from the District Court for Adams County: Stephen Illingworth, Judge. Reversed and remanded for a new trial.
Arthur R. Langvardt for appellant.
Don Stenberg, Attorney General, and Donald A. Kohtz for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, AND LANPHIER, JJ.
FAHRNBRUCH, J.


Because it was plain error to omit the element of "malice" from the jury instructions defining second degree murder and to omit from the jury instructions that the kinds of homicides instructed upon were felonies, Darren Lee Myers' convictions of second degree murder and use of a firearm to commit a felony are reversed, and he is granted a new trial.

Myers was charged by information with first degree murder and use of a firearm to commit a felony. A jury in the district court for Adams County rejected Myers' self-defense claim and convicted him of second degree murder in the January 24, 1992, shooting death of Kervin Thomas. The jury also convicted Myers of use of a firearm to commit a felony. Myers was sentenced to life imprisonment for the homicide conviction and 5 to 15 years' imprisonment for the firearm conviction, the sentences to run concurrently.

Restated, Myers' complaints on appeal are that (1) the trial court erred in instructing the jury, (2) prosecutorial misconduct denied him a fair trial, (3) his sentence is excessive, and (4) the trial court erred in overruling his motion for a new trial.

JURY INSTRUCTIONS

Myers complains that although he had been charged with use of a firearm to commit a felony, the jury was not instructed that any of the other offenses submitted to the jury were, in fact, felonies. He also contends that the jury was improperly instructed on self-defense.

Before reviewing Myers' assignments of error, we note that the trial court omitted the element of malice from its instruction on second degree murder. Although Myers made no objection to that instruction, we find that omission to be plain error and elect to review that issue first.

SECOND DEGREE MURDER INSTRUCTION

We are not unmindful that ordinarily, to be considered by an appellate court, errors must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred. See, Neb. Ct. R. of Prac. 9D(1)d (rev. 1992); State v. Vermuele, 241 Neb. 923, 492 N.W.2d 24 (1992). Although an appellate court does not consider assignments of error not listed and discussed in the briefs, it always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Design Data Corp. v. Maryland Cas. Co., 243 Neb. 945,. 503 N.W.2d 552 (1993). See, also, Neb. Rev. Stat. § 25-1919 (Cum. Supp.1992).

In Myers' case, the court was correct in instructing the jury on the three kinds of homicide, that is, first degree murder and second degree murder, and manslaughter. See State v. Morrow, 237 Neb. 653,467 N.W.2d 63(1991) (holding that when murder is charged, the court is required to charge on such lesser degrees of homicide as to which the evidence is properly applicable). The record shows that, in its second degree murder instruction, the trial court neither included nor defined "malice" as an element of second degree murder.


Prior to the adoption of the current criminal code in 1977, the second degree murder statute defined such a killing as one done "purposely and maliciously." Neb. Rev. Stat. § 28-402 (Reissue 1975). The current code states that "[a] person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation." Neb. Rev. Stat. § 28-304 (Reissue 1989). It does not mention malice.

However, this court has continued to require malice as an element of second degree murder. Section 28-304 became effective on January 1, 1979. See, 1977 Neb. Laws, L.B. 38, § 19; 1978 Neb. Laws, L.B. 748, § 54. In State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983), this court affirmed the defendant's second degree murder conviction for the May 1, 1980, slaying of his wife. Although the crime in Rowe occurred after the effective date of the new statute, this court held that the essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously. "Purposely" means "intentionally." State v. Thompson, ante p. 375, 507 N.W.2d 253 (1993); State v. Williams, 243 Neb. 959, 503 N.W.2d 561(1993).

In our recent opinions, we have continued to declare that malice is an element of second degree murder. See, e.g., State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992); State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991). But see State v. Williams, 226 Neb. 647, 413 N.W.2d 907 (1987), cert. denied___U.S. ____ 113 S.Ct. 260, 121 L.Ed.2d 191 (1992) (omitting mention of malice as element of second degree murder, but only issue on appeal was whether evidence was sufficient to support conviction for intentional killing rather than defendant's claim of self-defense).

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 has the effect of withdrawing from the jury an essential issue or element in the case is prejudicially erroneous. State v. Breaker, 178 Neb. 887, 136 N.W.2d 161 (1965).

By omitting the element of malice from the second degree murder instruction, the instruction in effect became one for the crime of intentional manslaughter as defined by this court inState v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989). Malice is not an essential element of 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." (Emphasis supplied.) Neb. Rev. Stat. §28-305(1) (Reissue 1989).

The omission in the instructions on second degree murder of malice as an element of that crime was prejudicially erroneous and constituted plain error, thereby entitling Myers to reversal of his convictions and a new trial.

INSTRUCTION ON FELONIES

Myers also complains that, although he had been charged with use of a firearm to commit a felony, the jury was not instructed that any of the other offenses submitted to the jury were, in fact, felonies. As previously noted, the jury was instructed on first degree murder, second degree murder, and manslaughter.

The record reflects that the court gave two instructions on the firearm charge, one in the language of the statute, Neb. Rev. Stat.§ 28-1205(1) (Reissue 1989), and one setting forth the elements of the offense, the burden of proof, and the standard of proof. The defense made no objection to either instruction at the instruction conference, even though the trial court had omitted setting forth that each of the homicide charges upon which it had previously instructed were felonies. Nor did the defense request or submit a proposed instruction that first degree murder, second degree murder, and manslaughter were felonies for the purpose of the firearm charge.

Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal absent plain error indicative of a probable miscarriage of justice. State v. Drinkwalter, 242 Neb. 40, 493 N.W.2d 319(1992). A party who does not request a desired jury instruction cannot complain on appeal about incomplete instructions. See State v. Huffman, 222 Neb. 512, 385 N.W.2d 85 (1986).

On the other hand, we held in State v. Bridger, 223 Neb. 250, 256, 388 N.W.2d 831, 835 (1986), that "[when] a trial court fails, after specific request by the defendant, to define a word which makes up an essential element of the crime charged, such failure is prejudicial error requiring reversal." (Emphasis supplied.) The case implies that the trial court is not required to define such terms if a definition is not requested by the defendant and the term has such a generally understood and accepted meaning that no instruction is necessary.

Myers argues that although the court and the attorneys knew that first and second degree murder and manslaughter were all felonies, the jury could not be presumed to know this. The word "felony" is a legal term of art and applies to numerous charges which cannot be said to have a generally understood and accepted meaning to the public at large. We agree with Myers that, in the absence of a definition of "felony," the jury was left to speculate as to an essential element of the firearm charge.

Once more exercising our prerogative to review the record for plain error, we again note 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 which by the omission of certain elements has the effect of withdrawing from the jury an essential issue or element in the case is prejudicially erroneous. State v. Breaker, 178 Neb. 887, 136 N.W.2d 161 (1965).

Whether the crimes upon which the jury was instructed are felonies for the purpose of the firearm charge is part of the pertinent law of Myers' case. The trial court's failure to instruct the jury on that essential element of the case was prejudicially erroneous. This is plain error indicative of a probable miscarriage of justice and entitles Myers to reversal of his use of a firearm conviction and a new trial.

SELF-DEFENSE INSTRUCTIONS

We next turn to Myers' claim that the jury was improperly instructed on self-defense. At the jury instruction conference, the defense objected to jury instruction No. 15 on self-defense. That instruction stated that "[t]he defendant did not act in self defense if the state proved beyond a reasonable doubt that any one of the following did not occur: (1) Kervin Thomas threatened or attempted to cause death or serious bodily harm...."

Myers submitted his proposed jury instruction No. 1, which stated that "the Defendant did not act in self-defense if the State proved beyond a reasonable doubt that any one of the following did not occur: [1] Kervin Thomas attacked Defendant or threatened Defendant with death or serious bodily harm.. . ." (Emphasis supplied.) The court overruled Myers' objection to instruction No. 15 and refused Myers' proposed instruction No. 1.

Myers' proposed instruction also defined deadly force as "force used with the intent to cause death or serious bodily harm or force used with the knowledge that its use would create a substantial risk of death or serious bodily harm." Otherwise, the instruction given and the proposed instruction were virtually the same. Both were based on the model jury instruction set forth in NJI.2d Crim. 7.3, except for the proposed instruction's definition of deadly force, which was excerpted from NJI.2d Crim. 7.2.

To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2)the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Lowe, ante p. 173, 505 N.W.2d 662 (1993).

If the jury instructions, when read together, correctly state the law, are not misleading, and adequately state the issues, there is no prejudicial error. Id.; State v. VanAckeren, 242 Neb. 479, 495 N.W.2d 630 (1993).

Myers argues that the necessity for the use of deadly force in self-defense is determined by a subjective standard, that is, whether Myers himself believed deadly force to be necessary at the time in question. He contends that instruction No. 15 permitted the jury to find that he did not act in self-defense only if the jury did not believe that the victim was in fact attempting to kill or seriously harm Myers.

The law on self-defense in this state is clear. A defendant asserting self-defense as justification for the use of force must have a reasonable and good faith belief in the necessity of such force. State v. Thompson, ante p. 375, 507 N.W.2d 253 (1993). A defendant's claim of self-defense is a question of fact for the jury. Id. Thus, the question of whether a defendant has a reasonable and good faith belief in the necessity to use force is a question of fact to be determined by a jury and is not to be determined solely by the defendant's own subjective belief in the necessity to use force.

The law permits the use of deadly force only when 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." Neb. Rev. Stat. § 28-1409(4) (Reissue 1989). Myers' tendered instruction No. 1 is an incorrect statement of the law because it states in effect that the use of deadly force by Myers was justified if Thomas merely attacked Myers without regard to whether Thomas was threatening or attempting to cause death or serious bodily harm to Myers. The trial court correctly refused the proposed instruction.

Moreover, the instruction as given correctly states the law. This assignment of error is without merit.

PROSECUTORIAL MISCONDUCT

Myers alleges that he was denied a fair trial because of prosecutorial misconduct, in that the prosecutor (1) persistently and repeatedly put before the jury evidence of irrelevant and nonprobative evidence of drug use and drug dealing by Myers; (2) commented in questioning witnesses and in closing argument upon Myers' declining to give a statement to law enforcement authorities following his arrest; (3) stated his personal belief in Myers' guilt during closing argument; and (4) put to Myers a series of questions during cross-examination implying specific factual knowledge on the prosecutor's part which was in direct contradiction to Myers' testimony, knowing that he could not support the accusations implied in such questions with evidence. We consider each of Myers' allegations in turn.

EVIDENCE OF DRUG USE AND DRUG DEALING

Myers argues in his brief that the prosecutor repeatedly attempted to inject evidence of drug use and drug dealing into the trial without any evidence that such activities were connected to the crime in question. Four witnesses testified in regard to drug use or drug dealing by Myers, Thomas, and other persons. The record reflects that of those four witnesses, three were allowed to testify without objection by Myers.

It is a well-settled rule that if a party does not make a timely objection to the receipt of evidence at trial, the party waives the right on appeal to assert prejudicial error in the reception of such evidence. See, State v. Schrein, ante p. 136, 504 N.W.2d 827 (1993); State v. Coleman, 241 Neb. 731, 490 N.W.2d 222 (1992). "A litigant is not entitled to silently allow the opposing party to produce evidence and then, upon entry of an adverse verdict, 'wander among the Nebraska Evidence Rules' on appeal, in hopes of obtaining a reversal." State v. Cave, 240 Neb. 783,793, 484 N.W.2d 458, 466 (1992).

By failing to object to the testimony of three witnesses who testified regarding drug use and drug dealing by himself, Thomas, and other parties, Myers waived the right to assert prejudicial error in the reception of their testimony.

During a fourth witness' similar testimony about drug use and drug dealing, defense counsel objected that such testimony lacked foundation, relevance, and probative value. The trial court overruled the objections and allowed the testimony. Later, at defense counsel's request, the witness' testimony about drug transactions was stricken from the record and the jury was instructed to disregard the testimony.

Ordinarily, when an objection to or motion to strike improper evidence is sustained and the jury is instructed to disregard it, such instruction is deemed sufficient to prevent prejudice. State v. Palser, 238 Neb. 193, 469 N.W.2d 753 (1991). The test to determine whether an instruction to disregard improper evidence is sufficient to prevent prejudice to the defendant is whether the remark which the jury was instructed to disregard, when viewed against the backdrop of all the evidence, so tainted the entire proceedings that the accused did not have a fair trial. Id.

In view of the fact that three other witnesses were allowed to testify about drug use and drug dealing without objection, any testimony to these same facts by a fourth witness would not have tainted the proceeding or prevented Myers from having a fair trial in any way. Therefore, the trial court's instruction to disregard the testimony was sufficient to prevent any prejudice to Myers.

COMMENTS ON MYERS' DECLINING TO MAKE STATEMENT

Myers argues that the prosecution impermissibly violated his Fifth Amendment right to remain silent by eliciting testimony about his lack of explanation of the killing and by commenting on the same during closing argument. This argument is directed at three separate occurrences. The first occurrence was after a deputy sheriff had testified that Myers had said a trace metal test on his hands was not necessary because he had shot Thomas. The prosecutor asked, "When Mr. Myers made that statement in response to your request, did he offer any explanation or excuse for the action he had taken?" The deputy answered, "None." The defense made no objection to this question and answer.

The second occurrence was during the State's cross-examination of Myers. The prosecutor asked, "Did you show the sheriff any marks on your neck from [Thomas] grabbing you by the neck?" Myers replied, "No, I didn't talk to anybody when I came in." Although Myers' answer following the word "no" is unresponsive to the question asked, there was no objection by defense counsel or motion to strike Myers' voluntary statement that he had not talked to anybody.

Finally, during closing argument, the prosecutor stated:

[I]f a guy was claiming-if he were claiming that he shot a guy because he was defending himself from him, wouldn't he have said, "Look at the marks on my neck," or, "He was... trying to get me," or, "Look at this, look what he did," or, "He was trying to knock me down." He didn't say that. He just said, "Why brother [sic] [with the trace metal test], I shot him." Now, you know, he's explained later what he says happened, but why didn't he explain that to the officer on the scene when he was first in custody in the sheriff's office?

The defense made no objections to these statements.

"[T]he due process clause of the 14th amendment forbids prosecutors from using a defendant's postarrest, post -Miranda silence for impeachment purposes." State v. Lofquest, 227 Neb. 567, 568, 418 N.W.2d 595, 596 (1988), citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L. Ed.2d 91(1976). It is clear from the record that the above testimony and comments about Myers' lack of explanation for the killing were in reference to a postarrest, post-Miranda timeframe. However, the crucial difference between Lofquest and the present case is the fact that the testimony and comments in Lofquest were objected to, while those in Myers' case were not.

Myers' brief and defense counsel's comments at oral argument indicate that the failure to object was a matter of trial strategy in at least some of the above instances. One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error. Wolfe v. Abraham, ante p. 337, 506 N.W.2d 692(1993).

Because all of the statements of which Myers now complains were not objected to at the time of trial, at least in part due to a consciously chosen trial strategy, Myers waived error in regard to the statements. We decline to further review this assignment of error.

PERSONAL BELIEF IN MYERS' GUILT

Myers also complains that, during closing and rebuttal arguments, the prosecutor expressed his personal belief that Myers had not killed Thomas in self-defense and that Myers was guilty of deliberately killing Thomas.

The record reflects that the comments of the prosecutor in his initial closing argument were as follows: "But he had an opportunity to avoid that situation, that is Myers did, and he didn't do it. He shot the man. I think he shot him in cold blood. And I think you must find him guilty." (Emphasis supplied.)

Myers also claims the following comments by the prosecutor in his rebuttal argument were objectionable:

Now this is a difficult decision. It's before you now. I do not think he acted in self defense. My conclusion is that he deliberately killed this man....
We're not trying David Jones [a witness who was present at the scene of the killing], we're not determining whether he - what he did or didn't do that night. We've got to decide whether what he told the officers and what he told you is supported by their conclusions. I believe it was. And I believe that Darren Myers killed Kervin Thomas that evening, and it was not required for his self-defense, and that therefore you must find him guilty.
(Emphasis supplied.)

There was no objection to the prosecutor's statements by the defense, nor was there a motion for mistrial. Myers first complained of the prosecutor's conduct in his appeal to this court.

It is highly improper and generally prejudicial for a prosecuting attorney in a criminal case to declare to the jury his personal belief in the guilt of a defendant, unless such belief is given as a deduction from evidence. State v. Leonard, 196 Neb. 731, 246 N.W.2d 68 (1976); State v. Brooks, 189 Neb. 592, 204 N.W.2d 86 (1973). If we were to review the prosecutor's comments, we might well find them objectionable. However, any objection to the prosecutor's arguments made after the jury has been instructed and has retired is untimely and will not be reviewed on appeal. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992); State v. Garza, 241 Neb. 934, 492 N.W.2d 32 (1992). Because Myers failed to timely object to the prosecutor's closing remarks, his complaint in this court on that subject will not be reviewed.

IMPROPER CROSS-EXAMINATION

Near the end of the State's cross-examination of Myers, the prosecutor asked Myers a series of questions which were apparently for the purpose of impeaching Myers' testimony that he had not talked to Thomas from October 1991 to the time of the killing in January 1992. Specifically, the State inquired as to whether Thomas had accompanied Myers in Myers' pickup truck to a certain woman's basement apartment a week or two before the killing. Myers denied riding anywhere with Thomas in the week or two preceding the killing. He further denied going to the woman's apartment or even being acquainted with the woman in question.

The defense made no objection to the line of questioning at the time. After the State put on no rebuttal evidence, Myers requested that the jury be instructed to disregard the questions because the State had failed to put on evidence that the meeting in the basement apartment had ever taken place in order to complete its impeachment of Myers. The court immediately instructed the jury to disregard the testimony on that issue entirely, as requested by the defense.

Such cross-examination is clearly improper. See State v. Jackson, 217 Neb. 363, 348 N.W.2d 876 (1984) (holding that an interrogator may not inquire of witness, "Isn't it true that you told X that you saw Y shoot Z?" leaving the impression that such was the case, and then not call X to establish that fact). The record reflects that the improper cross-examination was extremely brief, and when viewed against the backdrop of all the evidence, it did not taint the proceeding to the extent that Myers did not have a fair trial. The limiting instruction was sufficient to prevent any prejudice to Myers.

MOTION FOR NEW TRIAL

It is not necessary for us to reach the issue of whether the trial court properly overruled Myers' motion for new trial, inasmuch as we have already determined that Myers is entitled to a new trial.

EXCESSIVENESS OF SENTENCE

Finally, we turn to Myers' argument that his sentence is excessive and constitutes an abuse of judicial discretion.

Since we vacate Myers' judgments of conviction, this issue is also moot. However, because we are remanding the cause to the district court for retrial, we point out that the trial court committed plain error in its sentencing of Myers on the use of a firearm to commit a felony.

The trial court sentenced Myers to serve his firearm sentence concurrently, with his life sentence for second-degree murder. Section 28-1205(3) states, "[Using a firearm to commit a felony] shall be treated as a separate and distinct offense from the felony being committed, and sentences imposed under the provisions of this section shall be consecutive to any other sentence imposed." (Emphasis supplied.)

Under the terms of § 28-1205(3), it was plain error for the trial court to order Myers' firearm sentence to run concurrently with his life sentence.

CONCLUSION

There being plain error prejudicial to the defendant in the jury instructions on second degree murder and also in the jury instructions on use of a firearm to commit a felony, Myers' convictions are reversed, and the cause is remanded to the district court for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

SHANAHAN, J., not participating.




Comments or Questions| Top of Article| Malice Index| Home Page