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State v. Loving

Court of Appeals of Nebraska

April 9, 2019

State of Nebraska, appellee,
Jeffrey S. Loving, appellant.

         1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court.

         2. Jury Instructions: Proof: Appeal and Error. The appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

         3. Trial: Courts: Homicide: Jury Instructions. A trial court is required to give an instruction where there is any evidence which could be believed by the trier of fact that the defendant committed manslaughter and not murder.

         4. Homicide: Intent: Words and Phrases. A "sudden quarrel" is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control; the question is whether there existed reasonable and adequate provocation to excite one's passion and obscure and disturb one's power of reasoning to the extent that one acted rashly and from passion, without due deliberation and reflection, rather than from judgment.

         5. Appeal and Error: Words and Phrases. Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of the litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

         6. Trial: Judges: Jury Instructions: Appeal and Error. It is the duty of a trial judge to instruct the jury on the pertinent law of the case, whether requested to do so or not, and an instruction or instructions which by the omission of certain elements have the effect of withdrawing [27 Neb.App. 74] from the jury an essential issue or element in the case are prejudicially erroneous.

         7. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial if the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

          Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge. Reversed and remanded for a new trial.

          Thomas C. Riley, Douglas County Public Defender, and Leslie E. Cavanaugh for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Moore, Chief Judge, and Pirtle and Arterburn, Judges.

          Arterburn, Judge.


         Jeffrey S. Loving was convicted by a jury of murder in the second degree and use of a deadly weapon to commit a felony. The district court subsequently sentenced Loving to a total of 110 to 130 years' imprisonment. Loving appeals from his convictions here. On appeal, Loving assigns numerous errors, including that the district court erred by incorrectly instructing the jury as to the elements of murder in the second degree. Because we find merit to Loving's assertion that the district court erred in instructing the jury as to the elements of murder in the second degree and because we find such error is not harmless, we reverse Loving's convictions and remand the cause for a new trial.


         The State filed an information charging Loving with first degree murder pursuant to Neb. Rev. Stat. § 28-303(1) (Reissue 2016) and with use of a deadly weapon to commit a felony pursuant to Neb. Rev. Stat. § 28-1205(1) (Reissue 2016). The charges against Loving stem from an incident which occurred on July 7, 2016. Evidence adduced at trial revealed that at [27 Neb.App. 75] 5:53 p.m., shots were fired near the intersection of 28th and Laurel Avenues in Omaha, Nebraska. Approximately 3 minutes after the shots were fired, the 911 emergency dispatch service received a telephone call indicating that there was a shooting victim located at a gas station a short distance from 28th and Laurel Avenues.

         When police arrived at the gas station, they found Marshall Washington in the front seat of a silver sport utility vehicle (SUV) suffering from a gunshot wound to his right cheek. Washington's injuries were '"not compatible with life.'" He was pronounced dead at a hospital upon his arrival. At the gas station, police also located the driver of the SUV, Theodore Loving. Theodore told police that his nephew, Loving, had shot at the vehicle as a result of a dispute they were having. Theodore claimed that Loving owed him $3, 000 for drugs he had purchased. Loving was subsequently arrested and charged with the murder of Washington.

         At trial, Loving admitted that he fired the shots at Theodore's SUV, which shots resulted in Washington's death. However, he claimed that he was justified in firing the shots in defense of himself and his family, because he was afraid that Theodore was going to kill him, his sister, and his sister's children.

         The State disputed Loving's claim of self-defense. It presented evidence to demonstrate that Loving was angry with, and not afraid of, Theodore on the day of the shooting. The State also presented evidence to show that Loving fired the shots at Theodore's SUV when it was moving away from him and that after the shooting, Loving attempted to change his appearance and avoid arrest.

         The State called Theodore to testify. Theodore testified that he lives in California, but occasionally comes to Nebraska to visit family, including Loving and Loving's sister, Dynasti Loving. Theodore explained that his relationship with Loving and Dynasti was "nothing but love" and that he "always went out of [his] way to help them." When Theodore visited Nebraska in 2012 or 2013, he helped supply Loving with a [27 Neb.App. 76] large quantity of marijuana. Specifically, Theodore testified that on Loving's behalf, he obtained 1 pound of marijuana from his associates in Juarez, Mexico, and 1 pound of marijuana from his "friends in east Oakland." Despite receiving the 2 pounds of marijuana, Loving refused to pay for it. Because of Loving's refusal, Theodore paid $3, 000 of his own funds to his associates in Mexico, because "you don't want to mess with the Juarez boys." Theodore's friends from Oakland were never paid.

         In May 2016, Theodore returned to Nebraska for a visit. When he arrived in Nebraska, Theodore had a "friendly" conversation with Loving about the debt Loving owed to Theodore's friends in Oakland. Theodore testified that he was not concerned about Loving's repaying the $3, 000 he owed to Theodore; rather, he wanted Loving to repay Theodore's friends from Oakland. According to Theodore, Loving told Theodore that he needed a few weeks to obtain the funds to repay his debt. After Theodore's conversation with Loving, he continued to have contact with Loving, including purchasing marijuana from Loving and spending time together at Dynasti's house. Theodore testified that everything was "[f]ine" and "great" between him and Loving through the beginning of July.

         In the first few days of July 2016, Theodore's relationship with Loving changed. Theodore testified that he observed Loving to be spending a lot of money "partying," so he brought up again to Loving the drug debt. Testimony from Theodore and Loving and evidence recovered from Loving's cellular telephone indicated that in the first few days of July, Theodore and Loving exchanged numerous text messages and telephone calls regarding Loving's drug debt. Theodore sent Loving a text message telling him he could "at least send $200 towards [his] debt." Loving replied to the message that he did not intend to repay a 3-year-old debt. Loving also told Theodore to stop calling him and threatened to go to Theodore's girlfriend's house where Theodore was staying "to do something" to him. The State presented evidence that around this same time, Loving [27 Neb.App. 77] sent a text message to Dynasti, stating, '"He talking about he on his way I'm going to smoke him.'"

         Theodore testified that based on Loving's behavior, on July 5, 2016, he contacted a friend of his from Oakland named "Mike." Theodore gave this friend Loving's telephone number and told him that Loving lived with Dynasti. Text messages recovered from Theodore's cellular telephone indicate that Theodore also instructed Mike what to say when he telephoned Loving. Theodore also texted Mike at some point asking him if he had called Loving yet. Ultimately, Mike telephoned Loving sometime in early July and left him a voice mail message. On the message, Mike mentioned Theodore's name and threatened violence against Loving, Dynasti, and everyone who lived in Dynasti's house, if Loving did not repay his debt. Specifically, the voice mail message stated as follows:

Your Uncle Theodore will get that money. I know you are at your sister's house and I will come there if I have to and I will fuck both you all up. I am not going to leave nothing. Do you understand? So you best try to get that money as soon as you can and pass it to your blood or there will be some blood. And that is real ass talk. Now, if you got any sense, you better get my money or else I am going to [indecipherable] everybody in the house at your sister's.

         Theodore testified that he learned that Mike had left the message after Dynasti contacted Theodore on July 7 and was upset with him. Theodore then sent a text message to Mike, asking him, '"Why did you say my name?'"

         Also on July 7, 2016, Theodore learned through social media that it was the birthday of his childhood friend, Washington, who he had not seen in a number of years. Theodore also learned that Washington was not in good health and was residing at a local nursing home. He went to visit Washington for his birthday. Theodore and Washington left the nursing home after eating dinner there so that Theodore could "show [Washington] a good time on his birthday." From the nursing home, Theodore drove with Washington in the passenger seat [27 Neb.App. 78] of his SUV to the area of 30th and Crown Point Avenues to obtain marijuana. Dynasti's house is located at the intersection of 28th and Crown Point Avenues. Theodore testified that he was not "particularly heading to Dynasti's" when he left the nursing home.

         Theodore testified that when he approached Dynasti's house on Crown Point Avenue, he recognized someone, whose name he did not know, who was parked in front of the house and pulled up next to the person's vehicle to ask him if he had any marijuana to sell. While Theodore was stopped in front of the house, Loving came to the front of the house from the backyard. Loving told Theodore, "'You better get out of here before something happens. Ya'll weed days over here are over with.'" Theodore then began to drive away from Dynasti's house, telling Loving that he and Washington would just go around the corner to buy marijuana.

         Theodore drove around the block, trying to get to a nearby liquor store. He testified that he could not continue east on Crown Point Avenue after leaving Dynasti's house because there was a schoolbus blocking his way. Theodore admitted that this was the first time he had mentioned the schoolbus. When Theodore's SUV was near the intersection of 28th and Laurel Avenues, which is located behind Dynasti's house, Theodore observed Loving running toward him from behind Dynasti's house. At this time, Theodore had slowed his SUV down, but he did not stop. Loving then started shooting a gun toward the SUV. Theodore believed Loving fired four shots. Theodore quickly drove away from the area. He observed that Washington had been shot and "knew it was bad." Theodore testified that he was not heading anywhere in particular and that he ended up at a nearby gas station. He did not call 911 until he reached the gas station because his cellular telephone's "battery was dead." Theodore testified that he did not threaten Loving during their encounter on July 7, 2016. He also testified that he did not have a gun.

         During the defense's cross-examination of Theodore, he admitted that although he spoke with numerous officers [27 Neb.App. 79] immediately after the shooting and had given a deposition prior to trial, he had never before mentioned obtaining marijuana for Loving from people located in Mexico and Oakland and. thus, never mentioned Loving owed the people from Mexico or Oakland any money. Instead, Theodore repeatedly told police that Loving owed him money for marijuana and that Theodore wanted it back. In fact, in Theodore's text messages to Loving from May through July 2016, he never mentioned Loving owing anyone but Theodore money. In a telephone call to his sister while he was in a police interview room, Theodore stated that '"all I want is my money'" Theodore also told police several times that he went to Dynasti's house on July 7, 2016, in order '"to settle this with Jeffrey.'" Theodore believed that Loving was "dodging" him. Theodore did not mention wanting to buy marijuana for Washington when he initially spoke with police. Theodore told police that he did not even smoke marijuana.

         During the defense's cross-examination of Theodore, it presented evidence that prior to Theodore's trial testimony, he had denied knowing anything about Mike or about the threatening message Mike had sent to Loving.

         Forensic investigators who inspected Theodore's SUV after the shooting located three bullets on its passenger side. One of the bullets entered through the outside of the front passenger-side door and was located inside that door. A second bullet was located in the top molding of the rear passenger-side door. The third bullet was located on the plastic trim on the bottom of the passenger side between the front and rear doors. The three bullets recovered from Theodore's SUV and the bullet recovered from Washington were all .40-caliber and were all fired from the same gun.

         Both the front and rear passenger-side windows of Theodore's SUV were shattered during the shooting. The front passenger-side window was made of clear or greenish-colored glass. Glass matching that window was located on the east side of the intersection of 28th and Laurel Avenues. The rear passenger-side window was made of tinted glass. The glass appeared to [27 Neb.App. 80] be black in color. Glass matching the rear window was located on Laurel Avenue, a few feet ...

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