Opinion
No. S-94-877.
Filed May 5, 1995.
1. Appeal and Error. An appellate court always reserves the right to note plain error of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process.
2. Jury Instructions: Homicide: Intent: Appeal and Error. Failure to include the element of malice in the jury instruction on second degree murder constitutes plain error.
3. Criminal Law: Trial: Effectiveness of Counsel: Jury Instructions. Counsel's failure to object to the trial court's omission in an instruction of an essential element of a crime charged falls below an objective standard of reasonableness and renders the results of the trial both unreliable and fundamentally unfair, thereby substantively prejudicing a defendant's rights.
Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge. Reversed and remanded for a new trial.
Thomas A. Wilson, pro se.
Don Stenberg, Attorney General, and Kimberly A. Klein for appellee.
WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.
In 1986, a jury convicted Thomas A. Wilson of second degree murder and of use of a firearm in the commission of a felony. He was sentenced to 35 years' imprisonment for the second degree murder conviction and 6 to 10 years' imprisonment for the use of a firearm conviction, the terms to run consecutively. We affirmed his convictions and sentences in State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987).
In May 1994, Wilson filed his second petition for postconviction relief in Douglas County District Court, contending that (1) the trial court at his original trial had erred when it failed to include malice as an essential element of second degree murder in its jury instructions, and (2) he was denied effective assistance of counsel when his trial counsel failed to object to the trial court's omission of malice as an essential element of second degree murder in its jury instructions. In considering Wilson's second petition, the district court refused to apply our mandates, concluding, sua sponte, that malice is not an element of second degree murder. The district court therefore denied Wilson's request for postconviction relief, and he appealed.
An appellate court always reserves the right to note plain error of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process. State v. Williams, ante p. 935, 531 N.W.2d 222 (1995); State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994). Recently, in Williams, we addressed the very same issues Wilson raises. In Williams, also a case involving a defendant's second petition for postconviction relief, we held that "[f]ailure to include the element of malice in the jury instruction on second degree murder constitutes plain error." Id. at 940, 531 N.W.2d at 229. See, State v. Martin, 246 Neb. 896, 524 N.W.2d 58 (1994); State v. Ladig, 246 Neb. 542, 519 N.W.2d 561 (1994); State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994); State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994); State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994). We therefore granted Williams' postconviction relief motion and remanded his case for a new trial.
In addition, we held that Williams was denied effective assistance of counsel when his trial counsel failed to object to the trial court's omission of malice as an essential element of second degree murder in its jury instructions. Williams, supra. Counsel's failure to object to the trial court's omission in an instruction of an essential element of a crime charged falls below an objective standard of reasonableness and renders the results of the trial both unreliable and fundamentally unfair, thereby substantively prejudicing a defendant's rights. Id. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As a result, Wilson is entitled to a reversal of his murder conviction and a new trial.
Furthermore, because Wilson's use of a firearm conviction was predicated on his conviction of an underlying felony, the use of a firearm conviction also must be reversed. See Williams, supra.
The district court's order which denied Wilson's second petition for postconviction relief is reversed, and the cause is remanded for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.