State v. Ryan

Full title: STATE OF NEBRASKA, APPELLEE, v. DENNIS RYAN, APPELLANT

Court: Supreme Court of Nebraska

Date published: Feb 2, 1996

249 Neb. 218 (Neb. 1996)

543 N.W.2d 128

Opinion

No. S-94-1202.

Filed February 2, 1996.

1. Postconviction: Proof: Appeal and Error. A criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous.

2. Postconviction: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.

3. Jury Instructions: Proof: Appeal and Error. 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.

4. Criminal Law: Statutes: Words and Phrases. It is a fundamental principle of statutory construction that penal statutes are to be strictly construed, and it is not for the courts to supply missing words or sentences to make clear that which is indefinite, or to supply that which is not there.

5. Courts: Statutes: Words and Phrases. A state's highest court may, by authoritative interpretation, put words in a statute as if it had been so amended by the Legislature.

6. Criminal Law: Statutes. Although penal statutes are strictly construed, they are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.

7. Constitutional Law: Statutes. When a statute is susceptible of two constructions, under one of which the statute is unconstitutional or of doubtful validity, that construction which results in validity is to be adopted.

8. ___: ___. An overbroad statute should be construed so as to avoid any constitutional problems.

9. Statutes: Homicide: Intent. Without the element of malice or mens rea, Neb. Rev. Stat. § 28-304(1) (Reissue 1989), the second degree murder statute, would be of doubtful validity and perhaps unconstitutional.

10. Criminal Law: Intent. Malice, in its legal sense, denotes that condition of mind which is manifested by intentionally doing a wrongful act without just cause or excuse.

11. Legislature: Criminal Law: Statutes: Intent. Legislative silence as to a mental element in a crime already so well defined in common law and statutory interpretation is not to be construed as eliminating that element from the crime.

12. Criminal Law: Statutes: Intent. A statute may be construed to include a criminal intent element absent from its face.

13. Due Process: Criminal Law: Statutes. Due process of law requires that criminal statutes be clear and that ascertainable standards of guilt be defined with sufficient definiteness to inform those subject to the statute what conduct will render them liable to punishment. A construction resulting in unreasonableness as well as absurd consequences will be avoided.

14. Constitutional Law: Statutes. A statute is unconstitutionally vague or overbroad if it proscribes legal as well as illegal conduct.

15. Criminal Law: Presumptions: Proof. A person charged with a crime is entitled to a presumption of innocence, and may insist that the State prove his guilt beyond a reasonable doubt.

16. Criminal Law: Jury Instructions. Jury instructions which set forth only the statutory elements of a crime are insufficient when they do not set forth all the essential elements of the crime.

17. Homicide: Intent: Jury Instructions: Appeal and Error. A jury instruction that fails to include malice as a material element of murder in the second degree is plain error and prejudicial.

18. Postconviction: Homicide: Intent: Jury Instructions. When the material element of malice is omitted from the second degree murder jury instruction, a defendant's conviction for second degree murder is constitutionally invalid, and postconviction relief is proper to rectify the constitutionally invalid conviction.

19. Jurisdiction: Sentences: Appeal and Error. An appellate court is compelled to accept jurisdiction when the sentence entered by the trial court is invalid due to plain error in the proceedings.

20. Judgments: Time. A void judgment may be attacked at any time in any proceeding.

21. Postconviction: Waiver: Appeal and Error. To use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless.

22. Constitutional Law: Criminal Law: Juries. The Sixth Amendment provides in criminal prosecutions the defendant's right to an impartial jury. This right to trial by jury is fundamental to the American scheme of justice and includes as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of guilt.

23. Homicide: Intent: Proof: Juries. However clear the proof may be, or however incontrovertible may seem to the court to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. The same ruling is applicable to the element of malice in a second degree murder trial.

24. Homicide: Intent. Malice is an essential element of the crime of second degree murder, and the absence of malice is not an affirmative defense.

25. Due Process: Criminal Law: Jury Instructions: Presumptions. Due process in a trial of a criminal case prohibits a jury instruction which contradicts the presumption of a defendant's innocence or shifts to a defendant the burden of persuasion on an element of the crime charged.

Appeal from the District Court for Richardson County: ROBERT T. FINN, Judge. Reversed and remanded with direction.

J. William Gallup for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein for appellee.

WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

PER CURIAM.

Dennis Ryan filed a postconviction relief motion in the district court for Richardson County asking that his conviction and sentence for second degree murder be vacated. He claimed that in its instructions, the trial court had erred in failing to include "malice" as an essential element of the crime for which he was convicted.

Following a hearing, the district court denied Ryan the relief he prayed for and Ryan timely appealed to this court from that judgment.

We find that, as a matter of law, the jury instructions given in Ryan's trial violated Ryan's rights under the U.S. and Nebraska Constitutions and that his conviction and sentence are void. As a result, we reverse the postconviction relief judgment of the district court and remand the cause to that court with direction to vacate its postconviction relief judgment and grant Ryan a new trial.

STANDARD OF REVIEW

A criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous. State v. Barfoot, 248 Neb. 335, 534 N.W.2d 572 (1995). In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. See State v. Barrientos, 245 Neb. 226, 512 N.W.2d 144 (1994).

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. Derry, 248 Neb. 260, 534 N.W.2d 302 (1995).

FACTS

The facts underlying this case are fully set forth in Ryan's direct appeal. See State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987). The State charged Ryan by information with first degree murder. At trial, Ryan's major defense was his state of mind at the time of the murder. Following a jury trial, Ryan was convicted of second degree murder. He was sentenced to life imprisonment.

The jury was told in instruction No. 7 the material elements of first degree murder, second degree murder, and manslaughter. Section II of instruction No. 7 told the jury:

The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict the defendant of the crime of murder in the second degree are:

(1) That defendant Dennis Ryan, on or about April 30, 1985, did kill James Thimm, either alone or while aiding and abetting another;

(2) That he did so in Richardson County, Nebraska;

(3) That the defendant did so intentionally, but without premeditation.

The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material elements of the crime of murder in the second degree in order to convict the defendant of the crime of murder in the second degree.

If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements of this Section II is true, it is your duty to find the defendant guilty of the crime of murder in the second degree done purposely and maliciously but without deliberation and premeditation, and you shall so indicate by your verdict, unless you find that the defendant is not responsible by reason of insanity as set forth in Instruction No. 7A.

If, on the other hand, you find that the State has failed to prove beyond a reasonable doubt any one or more of the material elements in Section I and that the State has failed to prove any one or more of the material elements in Section II, it is your duty to find the defendant not guilty of the crime of murder in the second degree. You shall then proceed to consider the lesser included offense of manslaughter set out in Section III below.

(Emphasis supplied.)

Through his trial counsel, Ryan filed a direct appeal of his conviction to this court. At that time, the giving of jury instruction No. 7 was not assigned as error. Rather, Ryan assigned that the trial court erred in (1) failing to grant his motion to waive jurisdiction to the juvenile court, (2) receiving into evidence various photographs, (3) excluding certain testimony, (4) sustaining a codefendant's objections to the introduction of two depositions, (5) refusing to give certain requested jury instructions, and (6) imposing an excessive sentence. Upon review of the assigned errors, this court affirmed Ryan's conviction. State v. Ryan, supra.

On June 29, 1990, Ryan, represented by different counsel, filed a second amended motion for postconviction relief. Again, the giving of instruction No. 7 was not assigned as error. Rather, Ryan claimed that his conviction was void or voidable because (1) the State "prepped" its witnesses, (2) the court dictated to defense counsel how to prepare defense strategy, (3) the court denied Ryan's motion to transfer his case to juvenile court, (4) Ryan's defense was not allowed to fully cross-examine the State's witnesses, (5) the trial court allowed Ryan to be tried jointly with his father, (6) Ryan's sentence was excessive, and (7) Ryan had ineffective assistance of trial counsel. The district court for Richardson County denied that motion after a hearing. Ryan did not appeal the denial of his second amended motion for postconviction relief.

On September 8, 1994, Ryan, represented by other, new counsel, filed in the district court for Richardson County a postconviction relief motion seeking vacation of his conviction and sentence. In that motion, Ryan focused solely on jury instruction No. 7 and alleged, in substance, that (1) the trial court improperly instructed the jury as to the elements required to be proved by the State in order to convict Ryan of second degree murder, (2) his court-appointed trial counsel was ineffective for failing to object to the trial court's instruction on second degree murder, and (3) his counsel on direct appeal was ineffective in failing to assign as error the trial court's erroneous jury instruction on second degree murder.

After a hearing, the district court denied Ryan's postconviction relief motion, and Ryan timely appealed to this court.

ASSIGNMENT OF ERROR

Ryan contends that the district court erred in denying his motion to vacate his conviction and sentence.

ANALYSIS

MALICE AS ELEMENT OF SECOND DEGREE MURDER

We have held that it is a fundamental principle of statutory construction that penal statutes are to be strictly construed, and it is not for the courts to supply missing words or sentences to make clear that which is indefinite, or to supply that which is not there. State v. Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992). However, the U.S. Supreme Court has held that a state's highest court may, by authoritative interpretation, put words in a statute as if it had been so amended by the Legislature. See Winters v. New York, 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed. 840 (1948). Although we construe penal statutes strictly, we give penal statutes a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served. State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987). Moreover, when a statute is susceptible of two constructions, under one of which the statute is unconstitutional or of doubtful validity, that construction which results in validity is to be adopted. Id. As a result, an overbroad statute should be construed so as to avoid any constitutional problems. Id. (citing New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)).

Without the element of malice or mens rea, Neb. Rev. Stat. § 28-304(1) (Reissue 1989), the second degree murder statute of which Ryan was convicted, would be of doubtful validity and perhaps unconstitutional. Through acceptable statutory construction principles, we have held and continue to hold that under § 28-304(1), malice is a necessary element of second degree murder. By such statutory construction, there can be no question of § 28-304(1)'s validity.

For over a century, Nebraska, by statute, defined second degree murder as the killing of another person purposely and maliciously, but without deliberation and premeditation. See, Gen. Stat. ch. 58, § 4 (1873); Neb. Rev. Stat. § 28-402 (Reissue 1975). In doing so, Nebraska followed the commonly held view in this country that malice is an essential element of murder in the second degree. See 40 C.J.S. Homicide §§ 64 and 65 (1991). Operative July 1, 1978, the Legislature adopted the current criminal code, which defined second degree murder as causing the death of a person intentionally, but without premeditation. See § 28-304(1) (Reissue 1989).

We first addressed the elements of second degree murder under the current criminal code in State v. Clermont, 204 Neb. 611, 284 N.W.2d 412 (1979). The crime in that case was committed July 22, 1978, 3 weeks after the amendment became effective. The defendant assigned as error that the evidence was insufficient to support the verdict of guilty of second degree murder. We affirmed the trial court, holding that there was sufficient and competent evidence to support the conviction. In the Clermont opinion of October 1979, we continued to hold that the essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously. In State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983), the defendant assigned as error insufficient evidence to support a second degree murder conviction. In affirming the conviction, we recognized the discrepancy between our previous holding in Clermont and the strict reading of § 28-304(1). This court construed § 28-304(1) to its most reasonable and valid construction by stating:

Section 28-304(1) provides: "A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation." In State v. Clermont . . . this court said: "The essential elements in the crime of murder in the second degree are that the killing be done purposely and maliciously." We also said in State v. Clermont . . . " The elements of malice and intent concern the state of mind of the slayer. Malice, in its legal sense, denotes that condition of mind which is manifested by intentionally doing a wrongful act without just cause or excuse . . . ."

(Emphasis supplied.) State v. Rowe, 214 Neb. at 689-90, 335 N.W.2d at 312-13.

Proper statutory construction of § 28-304(1) mandates that malice remain an element of second degree murder. As a general rule, statutes will not be understood as effecting any change in the common law beyond what is clearly indicated. State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978). Legislative silence as to a mental element in a crime already so well defined in common law and statutory interpretation is not to be construed as eliminating that element from the crime. See, Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952); People v. McNeese, 892 P.2d 304 (Colo. 1995).

In Morissette v. United States, the defendant was charged with stealing and converting property of the United States in violation of 18 U.S.C. § 641, which statute is silent as to felonious intent. The trial court, over Morissette's objection, did not instruct the jury on felonious intent. The U.S. Court of Appeals for the Sixth Circuit held that the trial court did not err in refusing to instruct the jury on intent, because the statutory offense did not require an element of criminal intent. The U.S. Supreme Court noted that the mental element of intent was longstanding and well defined in common law, and thus, the Court reversed the lower court and held that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced. The Court described the government's request for a strict statutory construction without reading the element of intent as follows:

The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative.

342 U.S. at 263. Malice, like intent, is an element concerning the state of mind of the accused. State v. Rowe, supra. Malice, a material element of second degree murder dating back to the creation of the crime in the Nebraska Criminal Code, is a material element founded in statutory and common law. See id.

Legislative silence cannot do away with such a basic premise of what constitutes second degree murder. Whether a criminal intent or guilty knowledge is an essential element of a statutory offense is to be determined as a matter of construction from the language of the act, in connection with its manifest purpose and design. Thus, a statute may be construed to include a criminal intent element absent from its face. State v. Conner, 292 N.W.2d 682 (Iowa 1980).

Due process of law requires that criminal statutes be clear and that ascertainable standards of guilt be defined with sufficient definiteness to inform those subject to the statute what conduct will render them liable to punishment. State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993). A construction resulting in unreasonableness as well as absurd consequences will be avoided. State v. Conner, supra.

In regard to § 28-304(1), we have held that when the express language of the statute does not make the elements of the crime clear, the express language of the statute is insufficient. See State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994).

A statute is unconstitutionally vague or overbroad if it proscribes legal as well as illegal conduct. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972). Mens rea should apply to each of the statutory elements which criminalize otherwise innocent conduct. See U.S. v. X-Citement Video, Inc., ___ U.S. ___, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994). Malice is that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse. State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994). Construing the legislative silence of § 28-304(1) as eliminating malice as a material element of second degree murder would result in the absurd consequence of an overbroad murder statute making certain legal acts illegal.

For example, law enforcement officials forced to kill in the line of duty cause the death of another person intentionally. The law enforcement official, however, does not commit a wrongful act but acts with just cause. Similarly, the corrections employee or agent designated to carry out a criminal's sentence of death causes the death of another person intentionally. The prosecutor who successfully persuades a court to sentence a defendant to death causes the death of another person intentionally. Ordinarily, a court will not impose a death sentence unless a prosecutor has requested such sentence and has also adduced sufficient evidence to support the request. Even Nebraska's Board of Pardons, which includes Nebraska's Governor, Attorney General, and Secretary of State, causes the death of another person intentionally when the board's members turn down a reduction of sentence requested by an inmate who is awaiting execution. If malice is not read into § 28-304(1), these individuals carrying out state duties would be in violation of that statute unless the statute is properly construed.

If malice is not read into § 28-304(1), individuals who commit legal acts, though punishable under the statute, would have to defend themselves through an affirmative defense of justification. See Neb. Rev. Stat. § 28-1416 (Reissue 1989). This results in a shifting of the State's burden of proving every element of the crime charged in a criminal case. As a practical matter, the defendant would be forced to forego his or her presumption of innocence and be required to produce evidence that he or she in causing the death of a person acted lawfully. See State v. Grimes, supra. A person charged with a crime is entitled to a presumption of innocence and may insist that the State prove his guilt beyond a reasonable doubt. See Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993).

When the rules of proper statutory construction are applied to § 28-304(1), that statute, though silent as to the longstanding material element of malice, must be read to include malice as an element of second degree murder in order to preserve a defendant's right to his or her presumption of innocence.

As previously stated, the material elements of the crime of murder in the second degree are that the killing be done purposely and maliciously. These material elements are not new. Rather, they are over a century old and have always been the material elements of second degree murder in Nebraska and remain the material elements of the crime after the adoption of the current criminal code. See, Gen. Stat. ch. 58, § 4 (1873); State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995); State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994); State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992); State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991); State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988); State v. Moniz, 224 Neb. 198, 397 N.W.2d 37 (1986); State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983); State v. Samuels, 205 Neb. 585, 289 N.W.2d 183 (1980); State v. Clermont, 204 Neb. 611, 284 N.W.2d 412 (1979).

JURY INSTRUCTION'S OMISSION OF MALICE AS MATERIAL ELEMENT

In the case at bar, the trial court instructed the jury that the material elements of murder in the second degree are that the killing be done intentionally, but without premeditation. Such a jury instruction does not correctly instruct the jury of the material elements of second degree murder because it omits that the killing must be done maliciously.

The trial court also instructed the jury that if the State proved beyond a reasonable doubt that Ryan killed intentionally, but without premeditation, then the jury had a duty to find Ryan guilty of second degree murder done purposely and maliciously. Although the trial court recognized that malice is an essential element of second degree murder, its instruction did not require the jury to find whether Ryan killed with malice. Rather, the instruction commanded that if the jury determined that Ryan killed intentionally, but without premeditation, then the jury had a duty to find that he acted purposely and maliciously. As worded, the jury instruction requires the jury to presume malice if it finds that the killing was done intentionally.

Also as worded, the jury instruction does not require the State to prove each material element of second degree murder beyond a reasonable doubt. By ordering the jury to presume that Ryan acted with malice, a material element of the crime of second degree murder, the instruction violated Ryan's 14th Amendment rights to due process. See, Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). That violation was prejudicial to Ryan.

We have previously held that jury instructions which set forth only the statutory elements of a crime are insufficient when they do not set forth all the essential elements of the crime. State v. Williams, supra. We have also previously held that a jury instruction that fails to include malice as a material element of murder in the second degree is plain error and prejudicial. See, State v. Williams, supra; State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994); State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994). When the material element of malice is omitted from the second degree murder jury instruction, a defendant's conviction for second degree murder is constitutionally invalid and postconviction relief is proper to rectify the constitutionally invalid conviction. See, State v. Lowe, 248 Neb. 215, 533 N.W.2d 99 (1995); State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995); State v. Eggers, 247 Neb. 989, 531 N.W.2d 231 (1995).

PROCEDURAL DEFAULT

The State contends that Ryan's motion must be overruled because it is procedurally barred due to his prior direct appeal and his previous unsuccessful motion for postconviction relief which he did not appeal. As previously stated, however, the omission of malice as a material element to the crime of second degree murder is plain error and prejudicial. A judge's instructions to the jury as to the law and how the evidence should be assessed are crucial to a fair trial. They should guide the jury's deliberations and are not mere technicalities of our legal system. Errors in such matters may go to the heart of the question of guilt. See Houston v. Dutton, 50 F.3d 381 (6th Cir. 1995).

An appellate court is compelled to accept jurisdiction when the sentence entered by the trial court is invalid due to plain error in the proceedings. State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995). Moreover, the defendant's conviction was constitutionally infirm and, therefore, void ab initio. See, State v. Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984); State v. Ewert, 194 Neb. 203, 230 N.W.2d 609 (1975). A void sentence is no sentence. State v. Wren, 234 Neb. 291, 450 N.W.2d 684 (1990). It has been longstanding law in Nebraska that a void judgment may be attacked at any time in any proceeding. See State v. Ewert, supra. Thus, to use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless. State v. Plant, supra.

HARMLESS ERROR ANALYSIS

The State, apparently laying aside that the burden is upon it to prove every element of the crime charged, argues that the erroneous jury instruction was harmless error because Ryan did not produce evidence to show a lack of malice. Ryan, however, did present evidence at trial that he was under "mind control" during the crime and "`was not acting on his own free will.'" State v. Ryan, 226 Neb. 59, 72, 74, 409 N.W.2d 579, 588, 589 (1987).

The Due Process Clause of the 14th Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Francis v. Franklin, supra.

In Sandstrom v. Montana, 442 U.S. 510, 512, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), the U.S. Supreme Court addressed whether, in a case in which intent is an element of the crime charged, the jury instruction, "`the law presumes that a person intends the ordinary consequences of his voluntary acts,'" violates the 14th Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt. The Court held that the challenged jury instruction had the effect of relieving the State of the burden of proof on the critical question of petitioner's state of mind. Id. In Sandstrom, the Court stated:

[A] conclusive presumption in this case would "conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime," and would "invade [the] factfinding function" which in a criminal case the law assigns solely to the jury. The instruction announced to David Sandstrom's jury may well have had exactly these consequences. Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and "ordinary consequences" of defendant's action), Sandstrom's jurors could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove "beyond a reasonable doubt . . . every fact necessary to constitute the crime . . . charged," [citation omitted], and defendant was deprived of his constitutional rights . . . .

442 U.S. at 523.

The Sixth Amendment provides in criminal prosecutions, such as in Ryan's case, the defendant's right to an impartial jury. This right to trial by jury is fundamental to the American scheme of justice and includes as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of guilt. See Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895). The Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated. It would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, then leave it to the court to determine whether the defendant is guilty of all elements beyond a reasonable doubt. The jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993). However clear the proof may be, or however incontrovertible may seem to the court to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 2d 288 (1952) (quoting Judge Andrews in People v. Flack, 125 N.Y. 324, 26 N.E. 267 (1891)). The same ruling is applicable to the element of malice in a second degree murder trial.

Assuming Ryan's jury could have ignored the instruction's command that the jury presume malice and found Ryan guilty because he acted with malice, we cannot be certain that this is in fact what the jury did do. See Sandstrom v. Montana, supra.

In Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986), the U.S. Supreme Court applied a harmless error analysis to a jury instruction that instructed the jury to presume malice if the State proved beyond a reasonable doubt that a killing had occurred. The "presumption" instruction stated:

"`All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. Thus, if the State has proven beyond a reasonable . . . doubt that a killing has occurred, then it is presumed that the killing was done maliciously. But this presumption may be rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered by the Defendant, or exists in the evidence of the State.'"

478 U.S. at 574.

The facts in Rose v. Clark, however, are significantly distinguishable from the case at bar. In Rose v. Clark, 478 U.S. at 574-75 n.2, the trial court also instructed the jury:

"The question of whether the alleged killing was done with malice is for you to determine from the entire case, and you should look to all of the facts and circumstances developed by the evidence to determine whether the State has . . . proven beyond a reasonable doubt the existence of malice. If you have a reasonable doubt as to whether the alleged killing was done with malice, then the Defendant cannot be guilty of murder in the second degree and you must acquit him of that offense."

The Court determined that, based upon the record as a whole, the jury instruction to presume malice was not the kind of error that automatically required reversal of an otherwise valid conviction. Rose v. Clark, supra. The jury in Ryan's trial was not instructed that the State had to prove beyond a reasonable doubt that Ryan acted with malice. This is significant when considering that the Court further stated in Rose v. Clark that when a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt.

In the trial of Ryan, the jury was not instructed that malice is a material element of the crime of second degree murder. The Ryan jury was never instructed to determine whether malice existed. The jury was never instructed to deliberate or consider whether Ryan acted with malice. The jury was instructed only that if it found that Ryan, either alone or while aiding and abetting another, did kill James Thimm on or about April 30, 1985, in Richardson County and did so intentionally, but without premeditation, then it had a duty to find Ryan guilty of murder in the second degree done purposely and maliciously. Clearly, the instruction ordered the jury to presume malice without considering it to be a material element of the crime. We presume that juries follow their instructions. See Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987). A reasonable juror in the Ryan trial would never consider the issue of malice and whether the State produced evidence to prove beyond a reasonable doubt that element of second degree murder, but would follow the court's instruction to find that Ryan acted maliciously if he acted intentionally but without premeditation.

An erroneous presumption on a disputed element of the crime renders irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon the evidence. If the jury may have failed to consider evidence of intent, a reviewing court cannot hold that the error did not contribute to the verdict. The fact that the reviewing court may view the evidence of intent as overwhelming is simply irrelevant. Connecticut v. Johnson, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983). In Ryan's case, the record conclusively shows that Ryan was convicted of second degree murder without the jury having to find that the State proved beyond a reasonable doubt a material element of the crime of second degree murder, malice. Such an error deprived Ryan of a constitutional right so basic to a fair trial that the infraction can never be treated as harmless error. See, id.; Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

AFFIRMATIVE DEFENSE OF INSANITY

We do note that the court instructed the Ryan jury as to the affirmative defense of insanity in jury instruction No. 7A. The jury was instructed to find Ryan not responsible by reason of insanity if Ryan proved by a preponderance of the evidence that he did not have the mental capacity to understand the nature and quality of his act, or to distinguish between right and wrong with respect to it, or to know that such act was wrong and deserved punishment.

In Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), the U.S. Supreme Court addressed the constitutionality of burdening a defendant in a New York second degree murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law. The Patterson Court held that once the facts constituting a crime are established beyond a reasonable doubt, based on all the evidence including the evidence of the defendant's mental state, a criminal statute may mandate that the defendant prove the affirmative defense . . . by a preponderance of the evidence. The Court further stated:

We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.

(Emphasis supplied.) 432 U.S. at 210.

In so holding, the Court distinguished Patterson from Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). In Mullaney, 421 U.S. at 684, the court addressed whether a Maine statute requiring a defendant charged with murder to prove that he acted "`in the heat of passion on sudden provocation'" in order to reduce the homicide charge to manslaughter comported with the due process requirement to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. The trial court instructed the jury that "`malice aforethought is an essential and indispensable element of the crime of murder,'" without which the homicide would be manslaughter. 421 U.S. at 686. The jury was further instructed, however, that if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. The defendant successfully petitioned in federal court for a writ of habeas corpus to set aside his murder conviction. In granting habeas corpus relief, the federal court held that the prosecution must prove malice beyond a reasonable doubt. The Supreme Court, in affirming the federal court's grant of habeas corpus relief, held that the result in a case where the defendant is required to prove the critical fact in dispute, is to increase further the likelihood of an erroneous murder conviction. The Court further stated:

Maine law requires a defendant to establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter. Under this burden of proof a defendant can be given a life sentence when the evidence indicates that it is as likely as not that he deserves a significantly lesser sentence. This is an intolerable result in a society where, to paraphrase Mr. Justice Harlan, it is far worse to sentence one guilty only of manslaughter as a murderer than to sentence a murderer for the lesser crime of manslaughter.

421 U.S. at 703-04.

The Patterson Court found that Mullaney was distinguishable because in Mullaney the defendant was required to prove an element of the crime, whereas in Patterson, extreme emotional disturbance was not a part of the definition of the crime.

Thus, while a defendant may be required to prove by a preponderance of the evidence an affirmative defense, a defendant may not be required to assume the burden of disproving the existence of an essential element of a crime. Malice is an essential element of the crime of second degree murder, and the absence of malice is not an affirmative defense. The State must prove every ingredient of an offense beyond a reasonable doubt, and it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause. Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977). See, Gilmore v. Taylor, 508 U.S. 333, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993); Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987).

Accordingly, the State may not constitutionally rely upon the affirmative defense of insanity as a means of addressing the material element of malice in a trial for second degree murder because it relieves the State from proving beyond a reasonable doubt the defendant's guilt of each and every essential element of the crime, particularly malice.

Due process in a trial of a criminal case prohibits a jury instruction which contradicts the presumption of a defendant's innocence or shifts to a defendant the burden of persuasion on an element of the crime charged. See, State v. Parks, 245 Neb. 205, 511 N.W.2d 774 (1994); State v. Gatson, 244 Neb. 231, 505 N.W.2d 696 (1993); State v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991). Thus, the affirmative defense instruction cannot cure the court's failure to instruct the jury to find whether the State proved beyond a reasonable doubt each element of the crime charged.

A basic foundation of our criminal justice system is that the accused is presumed innocent and the State must prove beyond a reasonable doubt each element of the crime charged. The record reflects that Ryan, charged with a horrific crime, was not accorded the presumption of innocence. The State was not required to prove beyond a reasonable doubt each element of the crime with which Ryan was convicted and for which a life sentence was imposed. We cannot ignore or excuse a trial error that strikes at the foundation of our criminal justice system and which was prejudicial to Ryan.

CONCLUSION

As a result of the prejudicial jury instructions, Ryan's trial was rendered fundamentally unfair in violation of the U.S. and Nebraska Constitutions. We must and do reverse the postconviction relief judgment of the district court and remand the cause to that court with direction to vacate its postconviction relief judgment and grant Ryan a new trial on the second degree murder charge.

REVERSED AND REMANDED WITH DIRECTION.