State v. Miller

State of NebraSka , appellee , v.
DaNiel C. M iller , appellaNt.
798 N.W.2d 827
Filed April 15, 2011. 	No. S-10-582.
1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
2. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
3. Jury Instructions: Appeal and Error. All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law, are not mislead-
ing, and adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
4. Self-Defense. To successfully assert the claim of self-defense, a defendant must
have a reasonable and good faith belief in the necessity of using force.
5. ____. The force used in self-defense must be immediately necessary and must be
justified under the circumstances.
6. ____. A defendant’s use of deadly force in self-defense is justified if a reasonable
ground existed under the circumstances for the defendant’s belief that he or she
was threatened with death or serious bodily harm, even if the defendant was actu-
ally mistaken about the extent of the danger.
Appeal from the District Court for Douglas County: JohN D.
hartigaN, Jr ., Judge. Reversed and remanded for a new trial.
Greg Abboud, of Abboud Law Firm, and A. Michael Bianchi
for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heaviCaN, C.J., C oNNolly, gerrarD, StephaN, MCC orMaCk,
and M iller-lerMaN, JJ.
C oNNolly, J.
A jury found the appellant, Daniel C. Miller, guilty of
first degree murder and use of a deadly weapon to commit a
felony. The district court sentenced him to life in prison on
the murder conviction and 10 years in prison on the use of
the deadly weapon conviction, with the sentences to be served
consecutively. Miller appeals, claiming that the court erred
STATe v. MILLeR 	343
Cite as 281 Neb. 343
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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in instructing the jury on self-defense, in granting the State’s
Batson challenge, in allowing inadmissible testimony, and in
refusing to grant a mistrial because of prosecutorial miscon-
duct. Because the court erred in instructing the jury on self-
defense, we reverse, and remand for a new trial.
BACKGROUND
The facts are not in serious dispute. The parties do not dis-
pute that Miller was entitled to a self-defense instruction, and
there is no dispute that NJI2d Crim. 7.3 was the correct instruc-
tion. The dispositive issue is whether the language added to the
self-defense instruction by the trial judge misstated the law or
likely would have confused the jury.
The charges in this case stemmed from a confrontation
between two rival gangs. The rivalry was central to Miller’s
defense, and Miller does not dispute that he was affiliated
with a gang. In June 2008, Miller and some friends, many of
whom were gang members, drove to a gas station in Millard,
Nebraska, to fight a rival gang. Miller was carrying a gun that
he had retrieved earlier that day. The gangs were meeting to
fight because one of Miller’s friends had a dispute with Julius
Robinson, one of the rival gang’s members, over money.
When Miller’s group arrived at the gas station, they did
not see the rival gang, so they turned onto Deauville Drive, a
street that fronted the gas station. As they were driving down
the street, the rival gang emerged in what some witnesses
described as an ambush. There is a dispute as to how many
rival gang members emerged and what kind of weapons they
had. Miller testified that the attackers had guns and baseball
bats, while others stated that they just had bats. Still oth-
ers claimed there were no weapons at all. As the attackers
approached, Miller fired two shots. Robinson was hit in the
chest and later died.
At Miller’s trial, the court adopted the State’s proposed
jury instruction on self-defense without substantial change.
Miller objected to the instruction. Miller argued that the pro-
posed instruction contained a sentence that was not part of
any instruction within the Nebraska Jury Instructions and that
this sentence misstated the law. The State countered that this
344 	281 NeBRASKA RepORTS

sentence came from the comments to one of the self-defense
instructions and argued that State v. Eagle Thunder1 supported
the sentence. The court, noting that the challenged language
came from a comment to NJI2d Crim. 7.1, ultimately gave
the instruction. We set out the court’s instruction below in
our analysis.
Miller complained of the instruction again when he moved
for a new trial. Miller argued that neither Eagle Thunder nor
the self-defense statute supported the instruction given. The
court denied the motion for a new trial.
ASSIGNMeNTS OF eRROR
Miller assigns, restated and renumbered, that the district
court erred in
(1) giving a self-defense instruction that misstated the law
and confused the jury;
(2) granting the State’s Batson2 challenge when Miller had
stated valid, race-neutral reasons for striking the juror;
(3) admitting improperly elicited testimony from Miller
about his involvement in other crimes;
(4) allowing the State to question a police officer about
whether Miller had contacted the police after the crime; and
(5) failing to grant a mistrial because of prosecutorial mis-
conduct during the State’s closing argument.
STANDARD OF ReVIeW
[1] Whether jury instructions are correct is a question of law,
which we resolve independently of the lower court’s decision.3
ANALYSIS
[2,3] Miller contends that the jury instructions regarding
self-defense were incorrect and likely confused the jury. In an
appeal based on a claim of an erroneous jury instruction, the
appellant has the burden to show that the questioned instruction
1 State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d 755 (1978).
2 See, Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. ed. 2d 33
(1992); Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. ed. 2d 69
(1986).
3 See State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
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Cite as 281 Neb. 343

was prejudicial or otherwise adversely affected a substantial
right of the appellant.4 All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported
by the pleadings and the evidence, there is no prejudicial error
necessitating reversal.5
The court gave the following instruction on self-defense:
The Defendant . . . Miller acted in self-defense if:
(1) . . . Robinson and others threatened or attempted
to kill or cause serious bodily harm to the Defendant and
other occupants of the vehicle;
(2) The Defendant and the other occupants of the vehi-
cle did not provoke any such threat or use of force against
them with the intent of using deadly force in response;
(3) Under the circumstances as they existed at the time,
the Defendant reasonably believed that his use of deadly
force was immediately necessary to protect him and the
others against death or serious bodily harm; and
(4) Before using deadly force the Defendant and the
others either tried to get away or did not try because they
reasonably did not believe that they could do so in com-
plete safety.
“Deadly force” means 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.
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 to that belief.
To raise the defense of self-defense, a defendant cannot
have been the aggressor in the unlawful use of force. A
defendant who is not the initial aggressor but responds to
force with more force than is necessary to repel the attack
becomes the aggressor at this new and more serious level
of force.
4 State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009).
5 State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).
346 	281 NeBRASKA RepORTS

The State has the burden of proof beyond a reasonable
doubt in disproving the elements of self defense.
Miller objects only to the part of the instruction that states,
“A defendant who is not the initial aggressor but responds to
force with more force than is necessary to repel the attack
becomes the aggressor at this new and more serious level of
force.” Miller argues that this sentence is a misstatement of the
law and cannot be read harmoniously with the sentence that
states that Miller could have been wrong in estimating the dan-
ger so long as there was a reasonable basis for his belief and he
acted reasonably on that belief.
As mentioned, there is no dispute over whether the court
should have given a self-defense instruction; the State did not
object to the instruction. But the challenged sentence is not
part of NJI2d Crim. 7.3, which may be given if a defendant
uses deadly force. Nor is it a part of any other jury instruction.
Instead, the language is found in the comments to NJI2d Crim.
7.1, which is the self-defense instruction that may be given
when the defendant uses nondeadly force.
The State argued that Eagle Thunder6 supports the chal-
lenged sentence, but we do not read Eagle Thunder to state
such a rule. In Eagle Thunder, the defendant had been attacked
but had escaped to safety. Although he was under no present
threat, he picked up a pipe and returned to assault those who
had previously attacked him. In addition to assaulting those
who had attacked him, he also hit a man who had not been
involved in the attack. We affirmed the trial court’s refusal to
instruct the jury on self-defense, stating, “[The] defendant was
the aggressor in this instance and therefore the trial court was
correct in refusing to instruct the jury” on self-defense.7 Eagle
Thunder thus stands for the rule that a defendant who is the
initial aggressor is not entitled to a self-defense instruction; it
does not hold that one who uses more force than is necessary
loses his privilege of self-defense. In sum, the challenged com-
ment finds no support in Eagle Thunder.
6 Eagle Thunder, supra note 1.
7 Id. at 211, 266 N.W.2d at 757.
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[4-6] We have consistently stated that to successfully assert
the claim of self-defense, a defendant must have a reasonable
and good faith belief in the necessity of using force.8 Further,
the force used must be immediately necessary and must be
justified under the circumstances.9 A defendant’s use of deadly
force in self-defense is justified if a reasonable ground existed
under the circumstances for the defendant’s belief that he or
she was threatened with death or serious bodily harm, even
if the defendant was actually mistaken about the extent of
the danger.10 This statement of the law is reflected in the jury
instructions, which state that a defendant may have been wrong
in estimating the danger so long as there was a reasonable
basis for that belief and he acted reasonably in response to
that belief.
As we have stated, a person is justified in using deadly force
in self-defense if the person reasonably believes he is threat-
ened with death or serious bodily harm. Conversely, if the evi-
dence shows that such a belief was unreasonable, the defendant
loses the protection of the defense.11 At that point, his use of
force is unlawful. But the challenged sentence does not state
that the defendant loses his justification when his belief is
unreasonable. Instead, it states that if the defendant responded
with more force than was necessary, he or she became the
aggressor at this new and more serious level of force.
As we read this challenged sentence, it allows the jury to
determine whether the force used was necessary, even if a
reasonable ground existed under the circumstances to sup-
port Miller’s belief that he was imminently threatened with
8 e.g., France, supra note 4; State v. Goynes, 278 Neb. 230, 768 N.W.2d
458 (2009); State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006);
State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999); State v. Marshall,
253 Neb. 676, 573 N.W.2d 406 (1998); State v. Kinser, 252 Neb. 600, 567
N.W.2d 287 (1997). See, also, Neb. Rev. Stat. § 28-1409 (Reissue 2008).
9 e.g., Kinser, supra note 8.
10 See, Iromuanya, supra note 8; State v. Thompson, 244 Neb. 375, 507
N.W.2d 253 (1993); § 28-1409.
11 See, Iromuanya, supra note 8; 2 Wayne R. LaFave, Substantive Criminal
Law § 10.4(c) (2d ed. 2003).
348 	281 NeBRASKA RepORTS

death or serious bodily harm. The challenged sentence is thus
an incorrect statement of the law. It conflicts with the jury’s
duty to determine whether Miller reasonably believed, in the
light of the circumstances known to him at the time, that the
use of deadly force was necessary to prevent death or seri-
ous bodily injury. If the jury finds that the defendant did have
such a reasonable belief, the killing was justified. What the
jury believes is actually necessary in response to such a threat
with the benefit of calm hindsight is not the inquiry, because
“[d]etached reflection cannot be demanded in the presence of
an uplifted knife.”12
Jury instructions are not prejudicial if they, when taken
as a whole, correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and the
evidence.13 Here, the instruction did not correctly state the law.
That alone results in prejudice requiring reversal. Moreover,
when all the jury instructions are read as a whole, they are at
best confusing. At worst, the challenged sentence effectively
negates the court’s instruction that Miller could be mistaken so
long as reasonable grounds for the belief existed. We cannot
read these two provisions harmoniously. The instruction was
prejudicial error. Because we find that the trial court’s errone-
ous jury instructions require reversal, we decline to consider
Miller’s other assignments of error.
reverSeD aND reMaNDeD for a New trial .
Moore, Judge, participating on briefs.
wright, J., not participating.
12 Brown v. United States, 256 U.S. 335, 343, 41 S. Ct. 501, 65 L. ed. 961
(1921).
13 See, Young, supra note 5.
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