Opinion
No. S-94-671.
Filed May 12, 1995.
1. Postconviction: Proof: Appeal and Error. A criminal defendant seeking postconviction relief has the burden of alleging and proving that a claimed error is prejudicial.
2. Postconviction: Proof. A defendant in a postconviction proceeding must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution.
3. Jurisdiction: Sentences: Appeal and Error. An appellate court is compelled to accept jurisdiction when the sentence entered by the court is invalid due to plain error in the proceedings.
4. 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.
5. Jury Instructions: Homicide: Intent: Appeal and Error. The failure to include the element of malice in the jury instruction on second degree murder constitutes plain error.
6. Criminal Law: Trial: Effectiveness of Counsel: Jury Instructions. The failure of defense counsel in a criminal trial to object to an instruction which omits a material element of the crime charged cannot be considered to be within the wide range of professionally competent assistance.
Appeal from the District Court for Lincoln County: JOHN P. MURPHY, Judge. Reversed and remanded with direction.
Joseph B. Eggers, pro se.
Don Stenberg, Attorney General, and Kimberly A. Klein for appellee.
WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.
Joseph B. Eggers, through a postconviction relief motion, asked the district court for Lincoln County for a new trial in regard to his second degree murder conviction. That court denied Eggers' request, and he appealed.
We reverse the district court's postconviction relief judgment and remand the cause for a new trial.
Eggers claims the postconviction court committed four errors. To dispose of this appeal, we need discuss only two of the issues raised by the assigned errors: (1) whether the original trial court erred when it failed to include in its instruction to the jury that malice is a material element of second degree murder, and (2) whether Eggers was denied effective assistance of counsel when his trial counsel did not object to the original trial court's omission in its jury instructions that malice is a material element of second degree murder.
The State charged Eggers with second degree murder for the July 14, 1984, death of a 3-year-old child. In 1984, a jury convicted Eggers of the charge. He was sentenced to life imprisonment. Unfortunately, the trial court omitted from its instruction on second degree murder the material element of malice.
Eggers appealed his conviction on the ground of insufficient evidence. This court affirmed the conviction, holding that the State presented sufficient evidence to support the second degree murder conviction. State v. Eggers, 220 Neb. 862, 374 N.W.2d 36 (1985).
On May 25, 1994, Eggers, acting pro se, filed a motion to vacate and set aside his conviction for second degree murder. Eggers alleged that the trial court committed plain error by omitting malice as a material element to second degree murder in the jury instructions. Eggers also alleged that he received ineffective assistance of counsel because his counsel failed to object to the prejudicial jury instruction.
The district court overruled Eggers' postconviction motion. In its order, the court stated that Eggers should have raised any plain error in his direct appeal and that attorneys are not required to anticipate changes in the law.
A criminal defendant seeking postconviction relief has the burden of alleging and proving that a claimed error is prejudicial. State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994). A defendant in a postconviction proceeding must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution. State v. Sims, 244 Neb. 771, 509 N.W.2d 6 (1993).
As noted by the postconviction court, Eggers did not assign the plain error on direct appeal. Nevertheless, an appellate court is compelled to accept jurisdiction when the sentence entered by the court is invalid due to plain error in the proceedings. State v. Williams, ante p. 931 , 531 N.W.2d 222 (1995). Moreover, 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. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994).
In State v. Williams, supra, this court addressed whether a defendant was entitled to postconviction relief from a second degree murder conviction when the court omitted the material element of malice from its jury instruction on second degree murder. We held that the failure to include the element of malice in the jury instruction on second degree murder constitutes plain error. We also held that the failure of defense counsel in a criminal trial to object to an instruction which omits a material element of the crime charged cannot be considered to be within the wide range of professionally competent assistance.
As a result of the prejudicial jury instruction and ineffective assistance of counsel, Eggers' conviction must be overturned. Upon retrial, the information, as well as the jury instruction, must state all material elements of the crime charged. See, State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994); State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994).
We reverse the judgment of the district court and grant Eggers' postconviction relief motion. This cause is remanded to the district court with direction to grant Eggers a new trial.
REVERSED AND REMANDED WITH DIRECTION.