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State of Nebraska v. Joseph D. Hotz

April 1, 2011

STATE OF NEBRASKA, APPELLEE,
v.
JOSEPH D. HOTZ, APPELLANT.



appeal from the District Court for Dawes County: briaN c. silvermaN, Judge.

The opinion of the court was delivered by: heavicaN, c.J.

1. Rules of Evidence.

In proceedings in which the nebraska evidence rules apply, the admissibility of evidence is controlled by the rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

2. Jury Instructions.

Whether jury instructions given by a trial court are correct is a question of law.

3. Jury Instructions: Proof:

Appeal and Error. 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.

4. Criminal Law: Motions for New Trial:

Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

5. Insanity:

Proof. the two requirements for the insanity defense are that (1) the defendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know the difference between right and wrong.

6. Criminal Law: Intoxication:

Intent. Intoxication has never been considered a justification or excuse for a crime, although intoxication may be considered to negate specific intent.

7. Criminal Law: Intoxication:

JuryInstructions. Intoxication is no justification or excuse for crime; but evidence of excessive intoxication by which the party is wholly deprived of reason, if the intoxication was not indulged in to commit crime, may be submitted to the jury for it to consider whether in fact a crime affirmed.

had been committed or to determine the degree where the offense consists of several degrees.

8. Criminal Law:

Intoxication: Mental Competency. as a matter of law, voluntary intoxication is not a complete defense to a crime, even when it produces psychosis or delirium.

9. Constitutional Law: Criminal Law:

Due Process. Under the Due process Clause of the 14th amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. the U.s. supreme Court has long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.

10. Constitutional Law:

Due Process. the determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.

reversed and remanded for a new trial.

heavicaN, c.J., coNNolly, gerrard, stephaN, mccormack, and miller-lermaN, JJ.

I. IntroDUCtIon

Joseph D. Hotz appeals from his convictions of second degree murder, attempted second degree murder, terroristic threats, and three counts of use of a deadly weapon to commit a felony. Hotz filed a petition to bypass, alleging that his case presented a new or novel issue of law, and we granted his petition. the underlying issue in this case is whether the voluntary use of drugs may give rise to a defense of insanity rather than voluntary intoxication. We find that the insanity defense instruction may not be given and that the proper jury instruction is the voluntary intoxication instruction. but because we find that Hotz was deprived of a fair trial due to irregularities in the proceedings, we reverse, and remand for a new trial.

II. FaCts

1. eveNts of december 5, 2008 the facts of this case are largely undisputed. Hotz and the victim, kenneth pfeiffer, were roommates in Chadron, nebraska. on December 5, 2008, at approximately 4 p.m., both Hotz and pfeiffer consumed psilocybin mushrooms and smoked marijuana. at approximately 6 p.m., the Chadron police Department received the first of several 911 emergency dispatch calls from susan Jensen. Jensen testified that she called 911 after she thought someone was trying to break into her house located on king street. Jensen stated that she saw Hotz through a window, that he did not appear to be in his right mind, and that he was yelling, "'oh, my God, please help me.'" Jensen testified that after Hotz left, there was a crack in the door and red smears on the door that had not been there before. a second 911 call was made from the home of rolland sayer and his wife, which home was also located on king street. sayer's wife was watching television in her living room when Hotz came through the front door holding two knives. Hotz had entered the home by breaking the glass of a small window near the door. sayer was in the shower at the time Hotz entered the home. sayer's wife testified that Hotz walked past her, went into the kitchen, and turned on the light. she stated that she exited the house and that Hotz did not follow her out. sayer's wife then got inside the car parked in the driveway and locked the door. When Hotz came out of the house a short time later, she hid in the car until she thought he was gone. sayer testified that he was in the bathroom shaving when he heard an unusual noise, but when he called out to his wife, she did not respond. sayer opened the door to find Hotz blocking his way. at that point, Hotz said, "'I want all your weapons,'" and sayer responded, "'I do not have any weapons.'" Hotz then asked for all sayer's possessions, and when sayer said he did not have any possessions, Hotz stated, "'I'm going to kill you.'" Hotz dropped a cordless telephone in front of sayer, who grabbed the telephone, barricaded himself in the bathroom, and dialed 911. Hotz began battering the door with the knives, stabbing through the door. sayer stated that Hotz' knives came within 6 or 8 inches of his hand. sayer further testified that when the noise outside the bathroom door ceased, he exited the bathroom to check on his wife. patty Howard, the 911 dispatcher, also testified. she stated that the first 911 call came through at 6:08 p.m. from Jensen. sgt. shawn banzhaf was present with Howard when the first call came in, so she immediately passed the information along to him. the second 911 call came in at 6:11 ...


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