State v. Watt , 285 Neb. 647 ( 2013 )


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  •                          Nebraska Advance Sheets
    STATE v. WATT	647
    Cite as 
    285 Neb. 647
    State   of   Nebraska,     appellee, v.   K evin     J. Watt,    appellant.
    ___ N.W.2d ___
    Filed April 12, 2013.   No. S-12-177.
    1.	 Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
    criminal conviction for sufficiency of the evidence to sustain the conviction, the
    relevant question for an appellate court is whether, after viewing the evidence in
    the light most favorable to the prosecution, any rational trier of fact could have
    found the essential elements of the crime beyond a reasonable doubt.
    2.	 Convictions: Appeal and Error. In reviewing a criminal conviction, an appellate
    court does not resolve conflicts in the evidence, pass on the credibility of wit-
    nesses, or reweigh the evidence.
    3.	 Jury Instructions: Appeal and Error. Whether jury instructions given by a trial
    court are correct is a question of law.
    4.	 Judgments: Appeal and Error. When dispositive issues on appeal present ques-
    tions of law, an appellate court has an obligation to reach an independent conclu-
    sion irrespective of the decision of the court below.
    5.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion by the
    trial court.
    6.	 Homicide: Intent: Weapons. Intent to kill may be inferred from deliberate use
    of a deadly weapon in a manner reasonably likely to cause death.
    7.	 Prior Convictions: Right to Counsel: Waiver: Proof. Before a prior felony
    conviction can be used to prove that a defendant is a felon in a felon in posses-
    sion case, the State must prove either that the prior felony conviction was coun-
    seled or that counsel was waived.
    8.	 Trial: Convictions. A conviction in a bench trial of a criminal case is sustained
    if the properly admitted evidence, viewed and construed most favorably to the
    State, is sufficient to support that conviction.
    9.	 Jury Instructions: Appeal and Error. Failure to object to a jury instruction
    after it has been submitted to counsel for review precludes raising an objection
    on appeal absent plain error indicative of a probable miscarriage of justice.
    10.	 Appeal and Error. On appeal, a defendant may not assert a different ground for
    his objection than was offered at trial.
    11.	 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.
    12.	 Jury Instructions. Whenever an applicable instruction may be taken from the
    Nebraska Jury Instructions, that instruction is the one which should usually be
    given to the jury in a criminal case.
    13.	 Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the
    right to assert prejudicial error on appeal.
    14.	 Appeal and Error. When an issue is raised for the first time in an appellate
    court, it will be disregarded inasmuch as a lower court cannot commit error in
    resolving an issue never presented and submitted to it for disposition.
    Nebraska Advance Sheets
    648	285 NEBRASKA REPORTS
    15.	 Trial: Appeal and Error. In order to preserve, as a ground of appeal, an
    opponent’s misconduct during closing argument, the aggrieved party must have
    objected to improper remarks no later than at the conclusion of the argument.
    16.	 Appeal and Error. Plain error may be found on appeal when an error unasserted
    or uncomplained of at trial, but plainly evident from the record, prejudicially
    affects a litigant’s substantial right and, if uncorrected, would result in damage to
    the integrity, reputation, and fairness of the judicial process.
    17.	 ____. The plain error exception to the contemporaneous-objection rule is to be
    used sparingly, solely in those circumstances in which a miscarriage of justice
    would otherwise result.
    18.	 Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecuto-
    rial misconduct in closing arguments, a court first determines whether the pros-
    ecutor’s remarks were improper. It is then necessary to determine the extent to
    which the improper remarks had a prejudicial effect on the defendant’s right to a
    fair trial.
    19.	 Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the duty to
    conduct criminal trials in such a manner that the accused may have a fair and
    impartial trial, and prosecutors are not to inflame the prejudices or excite the pas-
    sions of the jury against the accused.
    20.	 ____: ____: ____. A prosecutor’s conduct that does not mislead and unduly influ-
    ence the jury does not constitute misconduct. Whether prosecutorial misconduct
    is prejudicial depends largely on the context of the trial as a whole.
    21.	 Trial: Prosecuting Attorneys: Appeal and Error. When a prosecutor’s conduct
    was improper, an appellate court considers the following factors in determin-
    ing whether the conduct prejudiced the defendant’s right to a fair trial: (1)
    the degree to which the prosecutor’s conduct or remarks tended to mislead or
    unduly influence the jury, (2) whether the conduct or remarks were extensive or
    isolated, (3) whether defense counsel invited the remarks, (4) whether the court
    provided a curative instruction, and (5) the strength of the evidence supporting
    the conviction.
    22.	 Postconviction: Effectiveness of Counsel: Records: Appeal and Error. In
    order to raise the issue of ineffective assistance of trial counsel where appellate
    counsel is different from trial counsel, a defendant must raise on direct appeal
    any issue of ineffective assistance of trial counsel which is known to the defend­
    ant or is apparent from the record, or the issue will be procedurally barred on
    postconviction review.
    23.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that an inef-
    fective assistance of counsel claim is raised on direct appeal does not necessarily
    mean that it can be resolved. The determining factor is whether the record is suf-
    ficient to adequately review the question.
    24.	 Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
    assistance of counsel claim will not be addressed on direct appeal if it requires an
    evidentiary hearing.
    25.	 Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
    of counsel under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must show that counsel’s performance
    Nebraska Advance Sheets
    STATE v. WATT	649
    Cite as 
    285 Neb. 647
    was deficient and that this deficient performance actually prejudiced his or
    her defense.
    26.	   ____: ____. To show deficient performance, a defendant must show that coun-
    sel’s performance did not equal that of a lawyer with ordinary training and skill
    in criminal law in the area.
    27.	   ____: ____. To show prejudice, the defendant must demonstrate reasonable prob-
    ability that but for counsel’s deficient performance, the result of the proceeding
    would have been different.
    28.	   Effectiveness of Counsel: Presumptions: Appeal and Error. The entire ineffec-
    tiveness analysis is viewed with a strong presumption that counsel’s actions were
    reasonable and that even if found unreasonable, the error justifies setting aside
    the judgment only if there was prejudice.
    29.	   Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate
    trial strategy and tactics.
    30.	   Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
    fective assistance of counsel, an appellate court will not second-guess reasonable
    strategic decisions by counsel.
    31.	   Effectiveness of Counsel: Proof. In an ineffective assistance of counsel claim,
    deficient performance and prejudice can be addressed in either order. If it is more
    appropriate to dispose of an ineffectiveness claim due to the lack of sufficient
    prejudice, that course should be followed.
    32.	   Sentences. When imposing a sentence, a sentencing judge should consider the
    defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
    cultural background, (5) past criminal record or record of law-abiding conduct,
    and (6) motivation for the offense, as well as (7) the nature of the offense, and
    (8) the amount of violence involved in the commission of the crime.
    33.	   ____. The appropriateness of a sentence is necessarily a subjective judgment
    and includes the sentencing judge’s observation of the defendant’s demeanor and
    attitude and all the facts and circumstances surrounding the defendant’s life.
    34.	   Homicide: Sentences. When a defendant is sentenced to life imprisonment for
    first degree murder, the defendant is not entitled to credit for time served in
    custodial detention pending trial and sentence; however, when the defendant
    receives a sentence consecutive to the life sentence that has maximum and mini-
    mum terms, the defendant is entitled to receive credit for time served against the
    consecutive sentence.
    35.	   Sentences. A sentencing judge must separately determine, state, and grant the
    amount of credit on the defendant’s sentence to which the defendant is entitled.
    Appeal from the District Court for Douglas County: Gary B.
    Randall, Judge. Affirmed as modified.
    Stuart J. Dornan and Jason E. Troia, of Dornan, Lustgarten
    & Troia, P.C., L.L.O., for appellant.
    Jon Bruning, Attorney General, and Erin E. Tangeman for
    appellee.
    Nebraska Advance Sheets
    650	285 NEBRASKA REPORTS
    Wright, Connolly, Stephan, McCormack, and Miller-
    Lerman, JJ., and Irwin and Riedmann, Judges.
    Stephan, J.
    I. NATURE OF CASE
    Adrian Lessley and Jason Marion were shot during an alter-
    cation on the porch of an Omaha, Nebraska, home. Adrian was
    killed, and Jason was wounded. Kevin J. Watt was charged in
    connection with the shooting, and following a jury trial, he
    was convicted of first degree murder, first degree assault, two
    counts of use of a deadly weapon to commit a felony, and pos-
    session of a deadly weapon by a prohibited person. After sen-
    tencing, Watt perfected this direct appeal. We find no reversible
    error, but we modify the credit for time served as ordered by
    the district court and affirm as modified.
    II. BACKGROUND
    The shooting occurred on the evening of November 10,
    2010, at the home of Patricia Marion. Several other persons
    lived with Patricia, including Sharonda Lewis and her 2-year-
    old daughter, who lived in a basement bedroom of the home.
    Patricia’s son Jason did not live at her home, but visited regu-
    larly because his daughter often went there after school.
    In early November 2010, Patricia loaned Lewis a small safe
    because Lewis had complained that money had been stolen
    from her bedroom. Lewis stored money and drugs in the safe
    and kept it in a locked closet in her locked bedroom. Lewis and
    her boyfriend, Jeromie Wade, had keys to the safe.
    On November 10, 2010, Wade told Lewis that the safe was
    missing. Lewis believed Jason had taken the safe when he was
    at the house earlier that day. Lewis’ keys had also been missing
    at the time when Jason was at the house, but were later found.
    Patricia called Jason and asked him to come to the house so
    she could ask him about the safe. But Wade had already called
    Jason, and he was on his way back to the house. Jason and
    his friend Willie Lessley (Will) arrived at the house between
    10 and 10:45 p.m. En route, Jason received a call from Will’s
    cousin, Adrian. Jason told Adrian that he and Will were going
    to Patricia’s house because “[t]here was a situation . . . .”
    Nebraska Advance Sheets
    STATE v. WATT	651
    Cite as 
    285 Neb. 647
    When Jason and Will arrived, Patricia asked Lewis to leave so
    she could talk to Jason alone. Will waited on the front porch.
    After speaking with Jason, Patricia believed that he had not
    taken the safe.
    As Jason and Will prepared to leave, Patricia went with
    them to the front door. Wade arrived in a red or maroon Ford
    Windstar minivan, which he parked behind Jason’s vehicle
    in the driveway of an unoccupied house immediately east
    of Patricia’s house. Wade called Will over to the minivan.
    Will told Wade that he did not believe anyone from the
    house had taken the safe and that Wade should talk to Jason
    and Patricia.
    Jason and Wade then engaged in a heated discussion
    for approximately 5 minutes. Eventually, Wade, Jason, and
    Patricia all went inside and Will stayed on the porch. After
    another 5 minutes, Adrian and his friend Robert McCraney
    arrived. McCraney testified that he and Adrian went to
    Patricia’s house because either Jason or Will had asked Adrian
    to come over.
    Inside the house, discussion continued about the missing
    safe. Patricia spoke with Wade, who was still quite upset and
    seemed to think that Jason had taken the safe. Jason believed
    his brother had taken the safe, and Jason tried to talk to him
    about it. By this time, at least two other people had approached
    the front porch, but Patricia testified that it was too dark to
    identify them because the porch light did not work. Patricia
    heard male and female voices coming from the porch, includ-
    ing those of one of Patricia’s former foster children, her twin
    sister, and Lewis. Patricia tried to go out on the porch, but was
    told she should stay inside.
    While inside the house, Wade placed a call on his cellular
    telephone. At one point, Adrian came inside and told Jason he
    should tell Wade to leave because Wade was being disrespect-
    ful. Adrian and Wade then began arguing. Adrian returned to
    the porch, and Wade made another call on his cellular tele-
    phone. Adrian came inside again and told Jason to tell Wade
    “to get off his phone.” Wade finished his call and then placed
    the telephone in his pocket.
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    652	285 NEBRASKA REPORTS
    Adrian and Wade were arguing as they went outside the
    house. Jason followed them out. At that point, the front of the
    house was illuminated only by lights in the driveway and the
    light coming from the windows of the front living room.
    By this time, Wade, Adrian, Jason, Will, and McCraney were
    all on the porch, and Patricia was standing in the doorway of
    the house. Arguments continued about the missing safe. Will
    told Adrian that the situation had nothing to do with the two of
    them, but Adrian said he thought Wade was being disrespectful
    of Patricia.
    As the arguing continued on the porch, a large sport utility
    vehicle (SUV), identified as a newer, light-colored Chevrolet
    Suburban, pulled into the driveway of Patricia’s house at the
    west edge of the property. A man identified by Will, McCraney,
    and Lewis as Watt got out of the SUV. He was wearing a tan
    hooded sweatshirt, a white T-shirt, and dark-colored jeans.
    Lewis testified that she knew Watt because his sister is the
    mother of Wade’s children. Will and McCraney had seen Watt
    around the neighborhood.
    Watt came up to the porch and shook Adrian’s hand. Adrian
    said to Watt, “What’s up, man? You know me.” However,
    Jason said there was no indication that Adrian had invited
    Watt to the house. When Watt arrived, Wade’s demeanor
    changed and he became more animated, talking more loudly.
    After a few minutes, Watt returned to his vehicle and entered
    the driver’s side, but he did not leave. McCraney testified that
    he told Adrian they should leave because he had a feeling
    something was going to happen, but Adrian paid no attention
    to McCraney.
    As tensions mounted among those on the porch, a fistfight
    erupted between Adrian and Wade. Jason, Will, Lewis, and
    Patricia’s former foster daughter all tried to break up the fight,
    to no avail. During the fight, McCraney looked toward the
    west driveway and saw Watt near the rear of the SUV. Watt
    had pulled up the hood of his sweatshirt. Watt then walked
    over to the driver’s side of Wade’s minivan in the other drive-
    way. McCraney turned his attention back to the fight on the
    porch, and when he looked back toward the driveway, he
    saw Watt on the sidewalk in front of the minivan holding a
    Nebraska Advance Sheets
    STATE v. WATT	653
    Cite as 
    285 Neb. 647
    rifle, which McCraney believed was either an AK-47 or an
    SKS. McCraney turned away, knowing he needed to leave the
    porch, and then heard gunshots. McCraney said he tried to get
    Adrian to go with him, but Adrian had been shot. McCraney
    heard three or four shots, jumped off the porch as the gunshots
    continued, and ran to a building south of the house, where he
    called the 911 emergency dispatch service. The women who
    had been on the porch crawled into the house to escape the
    gunfire. Jason said he heard gunshots and felt a sensation in
    his arm and chest. He bounced up against the house and then
    heard rapid fire. Jason covered his face and took cover against
    the house.
    Will testified that he heard two gunshots as he was trying to
    break up the fight. He ducked down the porch stairs and saw
    Watt standing in the yard with a rifle in his hands. Will saw
    Watt fire three or four shots. Will was able to identify Watt
    because each time a shot was fired, the gun would flash and
    illuminate the shooter’s face. Watt was standing 10 to 15 feet
    from the bottom porch step. Will squatted behind the east pil-
    lar at the bottom of the porch steps to avoid the gunfire. Will
    covered his head and heard several more shots fired.
    Lewis stated that she initially froze when she heard the gun-
    shots, but after she saw Adrian lying on the porch, she jumped
    over the porch and ran behind the house. When she found the
    other doors to the house locked, she came around the front on
    the opposite side of the house and saw Watt’s SUV as it left
    the driveway.
    After the gunfire stopped, a woman who had been inside
    the house during the shooting walked to the front door and
    saw Watt get into the SUV and back it out of the driveway.
    A neighbor testified that she heard six or seven gunshots just
    before 11 p.m. She looked out her bedroom window and saw a
    silver SUV “flying down the street” to the east, no more than 1
    minute after she heard the last gunshot.
    After the SUV fled the scene, Jason called Will to come up
    on the porch. Will saw that Jason was bleeding heavily from
    a gunshot wound and that Adrian was dead. Jason was leaning
    against the door while trying to pull out a .45-caliber handgun
    from his waistband. Jason had trouble gripping the handgun
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    654	285 NEBRASKA REPORTS
    with his right hand because of his injuries. Wade went to
    Jason and slapped the handgun out of his hand. Jason’s gun
    fell onto the porch, and the magazine separated from it. Will
    saw Wade pick up the handgun, but he did not see what Wade
    did with it.
    Two detectives from the Omaha Police Department were
    patrolling nearby when they heard multiple gunshots from
    what they believed was a high-caliber rifle at 10:56 p.m.
    They arrived at Patricia’s house less than 1 minute later. A
    group of people on the porch were yelling and screaming that
    someone had been shot. The officers saw Wade run across the
    yard to the Windstar minivan. The officers commanded him
    to stop, but Wade tried to back the minivan out of the drive-
    way. Eventually, Wade stopped the minivan, exited, and was
    handcuffed. Wade had blood on his forehead and hands, but
    he did not appear to be injured. Wade told one of the officers
    that someone had tossed a handgun directly across the street.
    Jason’s handgun was later located by law enforcement across
    the street. The magazine from Jason’s handgun was located on
    the porch of Patricia’s house, along with nine .45-caliber live
    rounds, which fit inside the magazine.
    Jason was transported by ambulance to an Omaha hospital,
    where he was treated for a gunshot wound. The bullet entered
    between Jason’s upper right shoulder and upper right triceps
    and exited through the right side of his chest. Jason was hospi-
    talized for approximately 2 weeks and underwent three surger-
    ies. He subsequently underwent physical therapy to return his
    right arm to full function.
    The autopsy report of Adrian’s body documented 14 bullet
    wounds, including both entrance and exit wounds. Two bullets
    and several bullet fragments were found in Adrian’s abdomi-
    nal area. The cause of death was determined to be a gunshot
    wound to the chest.
    The Ford Windstar minivan driven by Wade on the night
    of the shooting was owned by Watt’s sister. A search of the
    minivan found an empty black rifle case on the front passenger
    seat. Although no firearms were located in the minivan, two
    rifle magazines were found in a side compartment of the rifle
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    STATE v. WATT	655
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    case. The magazines contained 7.62-mm rounds. However, the
    firearm used in the shooting was never located.
    At the scene, five spent cartridge cases were found, and it
    was determined they had been fired by the same weapon. Five
    different firearms were identified as being capable of firing the
    cartridges: a B West AK-47S; a Chinese SKS; an Arsenal SLR
    95; a Czechoslovakian VZ-58; and a Russian RPD. The spent
    cartridge cases were 7.62 × 39-mm, which is a rifle cartridge.
    A plastic bag located in Lewis’ bedroom closet contained live
    rounds of that same caliber of ammunition. Lewis testified that
    the ammunition belonged to Wade and that she was not aware
    it was in her closet. The bullets and fragments removed from
    Adrian’s body at the autopsy were determined to be either
    7.62-mm or .30/30-caliber bullets.
    A warrant was issued for Watt’s arrest in November 2010,
    but law enforcement was unable to locate him in Omaha. He
    was apprehended in Glendale, Arizona, in December 2010,
    based on a Crimestoppers tip.
    Two witnesses testified for Watt. His wife testified that Watt
    was with her the entire evening of November 10, 2010. She
    said he dozed off on the couch at about 11:30 p.m. She said she
    received a telephone call at 3 or 4 a.m. telling her that Adrian
    had been shot.
    Jaquita Shields lived with the Watts. She testified that she
    worked on November 10, 2010, from 2 to 10 p.m. and arrived
    home at about 10:20 p.m. Shields then put together a computer
    desk, completing the task at about 11:15 or 11:30 p.m. She
    stated that Watt was present during this entire time. She went
    to her room at around midnight.
    The State offered a rebuttal witness who worked as a cus-
    tomer support supervisor for Shields’ employer. The witness
    testified that Shields worked for the company from November
    4 to 11, 2010. Shields’ regular schedule was the second shift,
    from 3:30 p.m. to midnight. The company’s time records
    for November 10 show that Shields worked from 3:24 to
    11:50 p.m.
    A jury convicted Watt of first degree murder, first degree
    assault, and two counts of use of a deadly weapon. The court
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    found Watt guilty of possession of a deadly weapon by a pro-
    hibited person. Watt was sentenced to a term of life imprison-
    ment for first degree murder and to prison terms of 15 to 30
    years for each of the other convictions, for a total of life plus
    60 to 120 years in prison. All sentences were ordered to be
    served consecutively. Watt was given credit for 448 days’ time
    served “against the sentence imposed.”
    III. ASSIGNMENTS OF ERROR
    Watt assigns the following errors: (1) There was insuf-
    ficient evidence to convict him, (2) the district court erred
    by incorrectly instructing the jury, (3) the State engaged in
    prosecutorial misconduct by arguing facts not in evidence and
    by intimidating a witness into changing her testimony, (4)
    he received ineffective assistance of counsel at trial, (5) the
    district court erred in finding that exhibit 2 was sufficient to
    establish a prior felony conviction, and (6) the district court
    abused its discretion in sentencing.
    IV. STANDARD OF REVIEW
    [1,2] When reviewing a criminal conviction for sufficiency
    of the evidence to sustain the conviction, the relevant question
    for an appellate court is whether, after viewing the evidence
    in the light most favorable to the prosecution, any rational
    trier of fact could have found the essential elements of the
    crime beyond a reasonable doubt.1 In reviewing a criminal
    conviction, an appellate court does not resolve conflicts in
    the evidence, pass on the credibility of witnesses, or reweigh
    the evidence.2
    [3,4] Whether jury instructions given by a trial court are
    correct is a question of law.3 When dispositive issues on appeal
    present questions of law, an appellate court has an obligation
    to reach an independent conclusion irrespective of the decision
    of the court below.4
    1
    State v. Reinpold, 
    284 Neb. 950
    , 
    824 N.W.2d 713
     (2013).
    2
    Id.
    3
    State v. Kibbee, 
    284 Neb. 72
    , 
    815 N.W.2d 872
     (2012).
    4
    Id.
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    STATE v. WATT	657
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    285 Neb. 647
    [5] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.5
    V. ANALYSIS
    1. Sufficiency of Evidence
    (a) Murder and Assault Convictions
    Watt argues that the evidence was insufficient to support
    his convictions for first degree murder and first degree assault,
    and the corresponding convictions for use of a deadly weapon
    to commit a felony. Because the convictions on the weapons
    charges are necessarily linked to the murder and assault con-
    victions, we consider only the elements of the latter offenses in
    our analysis of the sufficiency of the evidence.
    Pursuant to Neb. Rev. Stat. § 28-303 (Reissue 2008), a
    person commits murder in the first degree if he or she kills
    another person purposely and with deliberate and premeditated
    malice. Thus, the three elements which the State must prove
    beyond a reasonable doubt to obtain a conviction for first
    degree murder are that the defendant (1) killed another person,
    (2) did so purposely, and (3) did so with deliberate and pre-
    meditated malice.6 A person commits the offense of assault in
    the first degree if he intentionally or knowingly causes serious
    bodily harm to another person.7
    Watt challenges the sufficiency of the evidence on two
    grounds. First, he argues that the evidence was insufficient
    to prove that he fired the shots which killed Adrian and seri-
    ously injured Jason. He argues that Will, the only witness
    who testified that he saw Watt fire the rifle, gave differing
    statements to the police and also testified that he had con-
    sumed alcohol and had “smoked a PCP stick” prior to arriv-
    ing at the house. Watt argues that “given [Will’s] criminal
    record, prior statements and relationship to the victims,” he
    5
    State v. Ramirez, 
    284 Neb. 697
    , 
    823 N.W.2d 193
     (2012).
    6
    State v. Nolan, 
    283 Neb. 50
    , 
    807 N.W.2d 520
     (2012), cert. denied ___ U.S.
    ___, 
    133 S. Ct. 158
    , 
    184 L. Ed. 2d 78
    .
    7
    Neb. Rev. Stat. § 28-308(1) (Cum. Supp. 2012).
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    “was simply not credible.”8 Watt also claims that McCraney,
    who testified that he saw Watt holding the rifle just before
    the shots were fired, was not credible because he provided
    inconsistent statements.
    Watt’s argument ignores our standard of review, which does
    not permit us to resolve conflicts in the evidence, pass on the
    credibility of witnesses, or reweigh the evidence.9 The cred-
    ibility of Will, McCraney, or any other witness was a question
    for the jury, which heard and observed the witnesses as they
    testified. Any conflicts in the evidence or questions concerning
    the credibility of witnesses were for the jury as finder of fact to
    resolve.10 We conclude that there was sufficient evidence upon
    which the jury could have reasonably concluded that Watt was
    the shooter.
    Watt also contends that there was insufficient evidence of
    premeditation to support his first degree murder conviction.
    He argues that at most, the evidence supports a conviction for
    sudden quarrel manslaughter because he was attempting to
    stop the fight between Adrian and Wade. This manslaughter
    argument is problematic for two reasons. First, Watt did not
    assert at trial the affirmative defense of justifiable use of force
    for the protection of others.11 Rather, his defense was premised
    on the contention that he was not present at the scene of the
    shooting and therefore could not have committed the crimes.
    Second, at least one court has held that evidence of a sudden
    quarrel between the victim and a third party will not support a
    conviction of voluntary manslaughter and that the defendant’s
    intentional killing of one of the parties to the quarrel consti-
    tutes the offense of murder, not manslaughter.12 But ultimately,
    we need not decide whether on this record a jury could have
    reasonably convicted Watt of sudden quarrel manslaughter.
    This is so because there is evidence from which a rational trier
    8
    Brief for appellant at 28.
    9
    State v. Reinpold, supra note 1.
    10
    State v. Hudson, 
    279 Neb. 6
    , 
    775 N.W.2d 429
     (2009).
    11
    See Neb. Rev. Stat. §§ 28-1410 and 28-1416 (Reissue 2008).
    12
    State v. Harris, 
    27 Kan. App. 2d 41
    , 
    998 P.2d 524
     (2000).
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    285 Neb. 647
    of fact could have found each of the elements of first degree
    murder beyond a reasonable doubt.
    [6] With respect to the element of “deliberate and premedi-
    tated malice,” we have stated:
    “Deliberate means not suddenly, not rashly, and
    requires that the defendant considered the probable con-
    sequences of his or her act before doing the act. . . .
    The term ‘premeditated’ means to have formed a design
    to commit an act before it is done. . . . One kills with
    premeditated malice if, before the act causing the death
    occurs, one has formed the intent or determined to kill
    the victim without legal justification. . . . No particular
    length of time for premeditation is required, provided
    that the intent to kill is formed before the act is com-
    mitted and not simultaneously with the act that caused
    the death. . . . A question of premeditation is for the jury
    to decide.”13
    As discussed above, there is evidence from which a trier of fact
    could have reasonably concluded that Watt was the person who
    fired the fatal shots. And the act of shooting an individual in
    the manner described by the witnesses in this case is inherently
    a deliberate act.14 Intent to kill may be inferred from deliber-
    ate use of a deadly weapon in a manner reasonably likely to
    cause death.15
    There is also evidence which supports a reasonable infer-
    ence that Watt planned his actions and considered their con-
    sequences before pulling the trigger. McCraney testified that
    before the fight began, Watt was seated in the SUV, which was
    parked in the driveway on the west edge of Patricia’s front
    yard. When the fight started, McCraney observed Watt exit the
    SUV, pull the hood of his sweatshirt over his head, and walk
    across the property to where Wade had parked the Windstar
    13
    State v. Nolan, supra note 6, 283 Neb. at 73-74, 807 N.W.2d at 541 (quoting
    State v. Robinson, 
    272 Neb. 582
    , 
    724 N.W.2d 35
     (2006), abrogated on
    other grounds, State v. Thorpe, 
    280 Neb. 11
    , 
    783 N.W.2d 749
     (2010)).
    14
    See id.
    15
    State v. Iromuanya, 
    272 Neb. 178
    , 
    719 N.W.2d 263
     (2006); State v.
    Gunther, 
    271 Neb. 874
    , 
    716 N.W.2d 691
     (2006).
    Nebraska Advance Sheets
    660	285 NEBRASKA REPORTS
    minivan in the driveway adjacent to the east edge of the yard.
    McCraney testified that shortly thereafter, he observed Watt
    holding an assault rifle with two hands. From the fact that
    an empty rifle case and ammunition of the same caliber used
    in the shooting were subsequently found in the minivan, a
    trier of fact could reasonably infer that Watt left the SUV and
    walked to the minivan for the purpose of retrieving the weapon
    used in the shooting and that he, in fact, did so. Based upon
    McCraney’s testimony that shots rang out immediately after he
    observed Watt holding the weapon and Will’s testimony that
    he observed Watt standing in the front yard firing a rifle at the
    persons on the porch, a trier of fact could reasonably infer that
    Watt acted on his previously formed intent to deliberately use
    a deadly weapon in a manner reasonably likely to cause death.
    Thus, viewing the evidence in a light most favorable to the
    prosecution, as our standard of review requires, we conclude
    that a rational trier of fact could have found beyond a reason-
    able doubt that Watt killed purposely and with deliberate and
    premeditated malice. The evidence is therefore sufficient to
    support the first degree murder conviction.
    (b) Prior Felony Conviction
    Watt waived his right to have the jury consider the charge
    of possession of a deadly weapon by a felon, and the district
    court found him guilty of this charge at the conclusion of trial.
    On appeal, Watt challenges the sufficiency of the evidence to
    support this conviction.
    [7] The offense is defined by Neb. Rev. Stat. § 28-1206(1)
    (Cum. Supp. 2012), which provides: “Any person who pos-
    sesses a firearm . . . and who has previously been convicted
    of a felony . . . commits the offense of possession of a deadly
    weapon by a prohibited person.” Before a prior felony convic-
    tion can be used to prove that a defendant is a felon in a felon
    in possession case, the State must prove either that the prior
    felony conviction was counseled or that counsel was waived.16
    Watt argues on appeal that the State failed to meet its burden
    of proving a prior felony conviction.
    16
    State v. Portsche, 
    258 Neb. 926
    , 
    606 N.W.2d 794
     (2000).
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    STATE v. WATT	661
    Cite as 
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    At trial, the State offered exhibit 2, a certified copy of a
    judgment entered by the U.S. District Court for the District of
    Nebraska in 2006, finding Watt guilty of the offense of being
    a felon in possession of a firearm as defined in 18 U.S.C.
    § 922(g) (2006). The judgment listed the name of Watt’s attor-
    ney in that case. When exhibit 2 was offered at trial in the
    instant case for purposes of the felon in possession charge,
    Watt’s trial counsel reviewed it and stated: “Judge, I have noth-
    ing foundationally to object to. And I note that [Watt] was rep-
    resented by [counsel] during the process. I have no objection.”
    The exhibit was received.
    On appeal, Watt claims that receipt of this exhibit con-
    stituted plain error and that it was insufficient to establish a
    prior felony conviction. Specifically, he contends that exhibit
    2 “did not contain documentation that Watt was represented
    by counsel or waived his right to counsel at the time of the
    conviction” but “only established that at the time that the
    judgment was entered, August 11, 2006, he had an attorney
    of record.”17
    [8] A conviction in a bench trial of a criminal case is
    sustained if the properly admitted evidence, viewed and con-
    strued most favorably to the State, is sufficient to support that
    conviction.18 Applying that standard of review, we conclude
    that exhibit 2 was sufficient to establish that Watt was coun-
    seled at the time of his prior felony conviction. And as noted
    above, there was evidence in this case that Watt possessed
    the weapon used in the shooting which is the subject of this
    case. The evidence was therefore sufficient to support Watt’s
    conviction on the charge of being a felon in possession of a
    deadly weapon.
    2. Jury Instructions
    (a) Instruction No. 5
    [9,10] Jury instruction No. 5 given by the trial court was
    a step instruction which generally followed the format of
    17
    Brief for appellant at 44.
    18
    State v. Lamb, 
    280 Neb. 738
    , 
    789 N.W.2d 918
     (2010); State v. Thompson,
    
    278 Neb. 320
    , 
    770 N.W.2d 598
     (2009).
    Nebraska Advance Sheets
    662	285 NEBRASKA REPORTS
    NJI2d Crim. 3.1. On appeal, Watt argues that the district court
    erred by including language in instruction No. 5 which dif-
    fered from that of NJI2d Crim. 3.1 and altered the meaning of
    the instruction. As given by the court, the instruction began,
    “Under Count I of the Information, depending on evidence
    which you find that the State has proved beyond a reasonable
    doubt, you may find . . . Watt . . . Guilty of . . . .” The pattern
    jury instruction begins, “Depending on the evidence, you may
    return one of several possible verdicts.”19 Watt argues that the
    language added by the trial court was unduly suggestive and
    could have been interpreted by the jury to mean that the State
    had in fact conclusively proved the crimes beyond a reasonable
    doubt. But Watt did not make this objection at trial, and the
    issue has therefore not been preserved for appeal. Failure to
    object to a jury instruction after it has been submitted to coun-
    sel for review precludes raising an objection on appeal absent
    plain error indicative of a probable miscarriage of justice.20
    Although Watt objected to the instruction on another basis,
    this does not preserve it for our review, because on appeal, a
    defendant may not assert a different ground for his objection
    than was offered at trial.21
    [11] We find no plain error by virtue of the slight discrep-
    ancy in the language of instruction No. 5 as given and NJI2d
    Crim. 3.1. 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 neces-
    sitating reversal.22 Viewed in this light, the instruction as given
    was not prejudicial as it clearly instructed the jury that it was
    the jury’s decision as to whether the State had met its burden
    to prove a crime beyond a reasonable doubt.
    [12] Watt also contends on appeal that instruction No. 5 was
    improper because of the use of the word “must” instead of
    19
    NJI2d Crim. 3.1.
    20
    State v. Reinpold, supra note 1.
    21
    See State v. Bauldwin, 
    283 Neb. 678
    , 
    811 N.W.2d 267
     (2012).
    22
    State v. Kibbee, supra note 3.
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    “may” in the section entitled “Effect of Findings.” The court
    instructed the jury that it “must” consider the crimes separately,
    that it “must” decide if each element had been proved, and
    that it “must” proceed through the crimes in sequence until it
    reached its conclusion. Watt argues that the use of the word
    “must” exerted undue pressure on the jury to reach agreement.
    But again, he did not object to the instruction on this basis at
    trial. Thus, the issue has not been preserved on appeal and the
    only remaining question is whether the giving of the instruc-
    tion constituted plain error.23 It did not. The instruction was in
    conformity with NJI2d Crim. 3.1, which uses the term “must.”
    And we have stated, “Whenever an applicable instruction may
    be taken from the Nebraska Jury Instructions, that instruction
    is the one which should usually be given to the jury in a crimi-
    nal case.”24
    Watt also contends that instruction No. 5 did not adequately
    inform the jury that it could find him guilty of sudden quarrel
    manslaughter if it determined that he acted intentionally but
    under provocation of a sudden quarrel. This argument is based
    upon our decision in State v. Smith,25 which was filed 3 days
    after the verdicts in this case were returned. In Smith, we found
    error in the giving of a step instruction because the instruc-
    tion required the jury to convict on second degree murder if it
    found the killing was intentional and did not permit the jury to
    consider the alternative possibility that the killing was inten-
    tional but provoked by a sudden quarrel. The step instruction
    in this case is similar to that in Smith.
    We considered a post-Smith challenge to jury instructions in
    State v. Alarcon-Chavez,26 an appeal from a first degree murder
    conviction in which the step instruction was similar to that
    found deficient in Smith. There, we concluded that the instruc-
    tion could not have been prejudicial because the jury convicted
    the defendant of first degree murder and, therefore, the jury did
    23
    See State v. Reinpold, supra note 1.
    24
    State v. Freemont, 
    284 Neb. 179
    , 202, 
    817 N.W.2d 277
    , 297 (2012).
    25
    State v. Smith, 
    282 Neb. 720
    , 
    806 N.W.2d 383
     (2011).
    26
    State v. Alarcon-Chavez, 
    284 Neb. 322
    , 
    821 N.W.2d 359
     (2012).
    Nebraska Advance Sheets
    664	285 NEBRASKA REPORTS
    not reach the differences between second degree murder and
    sudden quarrel manslaughter which we addressed in Smith. The
    same reasoning applies here. Thus, any error with respect to
    the manslaughter instruction was harmless beyond a reasonable
    doubt and could not constitute plain error.
    (b) Instruction No. 6
    Watt also objects to the inclusion of manslaughter in instruc-
    tion No. 6, which outlined the elements necessary to find him
    guilty of use of a deadly weapon to commit a felony. The
    instruction stated that the material elements were:
    1. That on or about November 10, 2010, in Douglas
    County, Nebraska, [Watt] did commit Murder in the First
    Degree, Murder in the Second Degree, or Manslaughter
    which is the subject of Count I of the Information;
    2. That in the commission of said Murder in the First
    Degree, Murder in the Second Degree, or Manslaughter, a
    deadly weapon, to wit: a firearm, was used; and
    3. That such use of a deadly weapon was intentional.
    Watt’s objection to the inclusion of manslaughter in this instruc-
    tion was overruled by the trial court.
    In arguing that the instruction was in error, Watt relies on
    State v. Sepulveda,27 in which we noted that “[w]hen the felony
    which serves as the basis of the use of a weapon charge is an
    unintentional crime, the accused cannot be convicted of use of
    a firearm to commit a felony.” Watt argues that it was improper
    to include manslaughter in the elements of this instruction
    when there was no option for the jury to find him guilty of
    intentional manslaughter.
    Although Watt correctly asserts that a person cannot be
    convicted of use of a deadly weapon to commit a felony when
    the underlying felony is an unintentional crime, we find no
    reversible error in the instruction as given here. As we have
    noted, when the jury convicted Watt of first degree murder, it
    determined that he committed the crime intentionally. The jury
    then ceased its deliberations and did not consider manslaugh-
    ter. The conviction for use of a deadly weapon to commit a
    27
    State v. Sepulveda, 
    278 Neb. 972
    , 975, 
    775 N.W.2d 40
    , 44 (2009).
    Nebraska Advance Sheets
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    felony was based on the first degree murder conviction. The
    inclusion of manslaughter in the instruction could not have
    prejudiced Watt.
    3. P rosecutorial Misconduct
    Watt argues that the prosecutor engaged in misconduct by
    intimidating a witness into changing her testimony and by
    arguing facts not in evidence during closing argument.
    (a) Alleged Witness Intimidation
    Lewis testified as a witness for the prosecution. During
    her direct examination, she testified that she saw Watt arrive
    at the house in an SUV before the fistfight broke out and
    that he was attempting “to calm everything down” and was
    “basically being a peacemaker.” She also testified that after
    the fistfight began, an armed man dressed in black who no
    one knew “jumped in” and tried to shoot Wade. After a break
    in the trial, Lewis’ direct examination resumed and the State
    was given leave to treat her as a hostile witness over Watt’s
    objection. Lewis then admitted that she had lied about the
    unknown gunman dressed in black because she was fearful for
    her safety and that of her daughter. She testified that she saw
    the SUV in which Watt had arrived as it left the scene after
    the shooting. Lewis did not identify Watt as the person who
    fired the shots.
    On appeal, Watt claims that he observed a representative
    of the State “scolding Lewis in the hallway during the break”
    in the trial and that Lewis was “crying as she was being
    scolded.”28 He acknowledges that no record was made of this
    encounter, but he contends that the State intimidated Lewis
    into changing her testimony and thereby committed prosecuto-
    rial misconduct.
    [13,14] The absence of a record regarding the claimed wit-
    ness intimidation precludes our consideration of the issue.
    Failure to make a timely objection waives the right to assert
    prejudicial error on appeal.29 When an issue is raised for the
    28
    Brief for appellant at 37.
    29
    State v. Kibbee, supra note 3; State v. Collins, 
    281 Neb. 927
    , 
    799 N.W.2d 693
     (2011).
    Nebraska Advance Sheets
    666	285 NEBRASKA REPORTS
    first time in an appellate court, it will be disregarded inas-
    much as a lower court cannot commit error in resolving an
    issue never presented and submitted to it for disposition.30
    Because the record is silent with respect to this claim of pros-
    ecutorial misconduct, we cannot determine whether prejudicial
    error occurred.
    (b) Closing Argument
    Watt also argues that the prosecutor argued facts not in
    evidence during the rebuttal portion of closing argument and
    that this constituted misconduct warranting reversal. In an
    apparent reference to Wade, the prosecutor argued: “Because
    he called his buddy, [Watt], to come to that house in an SUV
    armed with his AK-47, and that when things got bad to open
    fire on the people on the porch.” Again referring to Wade,
    the prosecutor argued that “he got with [Watt]. And in that
    exchange, that rifle that was in that case in [Wade’s] car went
    to the SUV that [Watt] was driving.” Watt argues that these
    statements were improper because although there was evi-
    dence that Wade was talking on his cellular telephone before
    Watt arrived at the scene, there was no proof that he was
    speaking with Watt.
    [15-17] But Watt’s trial counsel did not object to these
    statements during closing argument or move for a mistrial. In
    order to preserve, as a ground of appeal, an opponent’s mis-
    conduct during closing argument, the aggrieved party must
    have objected to improper remarks no later than at the conclu-
    sion of the argument.31 Thus, Watt has waived any complaint
    about prosecutorial misconduct during closing arguments, and
    we cannot consider the issue unless we find that it constitutes
    plain error. Plain error may be found on appeal when an error
    unasserted or uncomplained of at trial, but plainly evident from
    the record, prejudicially affects a litigant’s substantial right
    and, if uncorrected, would result in damage to the integrity,
    reputation, and fairness of the judicial process.32 But as we
    30
    Id.
    31
    State v. Robinson, supra note 13.
    32
    State v. Alarcon-Chavez, supra note 26.
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    have noted, “‘the plain-error exception to the contempora-
    neous-objection rule is to be “used sparingly, solely in those
    circumstances in which a miscarriage of justice would other-
    wise result.”’”33
    [18-21] Generally, in assessing allegations of prosecuto-
    rial misconduct in closing arguments, a court first determines
    whether the prosecutor’s remarks were improper.34 It is then
    necessary to determine the extent to which the improper
    remarks had a prejudicial effect on the defendant’s right to a
    fair trial.35 Prosecutors are charged with the duty to conduct
    criminal trials in such a manner that the accused may have
    a fair and impartial trial, and prosecutors are not to inflame
    the prejudices or excite the passions of the jury against the
    accused.36 A prosecutor’s conduct that does not mislead and
    unduly influence the jury does not constitute misconduct.37
    Whether prosecutorial misconduct is prejudicial depends
    largely on the context of the trial as a whole.38 When a pros-
    ecutor’s conduct was improper, this court considers the fol-
    lowing factors in determining whether the conduct prejudiced
    the defendant’s right to a fair trial: (1) the degree to which the
    prosecutor’s conduct or remarks tended to mislead or unduly
    influence the jury, (2) whether the conduct or remarks were
    extensive or isolated, (3) whether defense counsel invited the
    remarks, (4) whether the court provided a curative instruc-
    tion, and (5) the strength of the evidence supporting the
    conviction.39
    We find no plain error with respect to the two brief seg-
    ments of the prosecutor’s closing argument challenged on
    33
    Id. at 336, 821 N.W.2d at 369 (quoting United States v. Young, 
    470 U.S. 1
    ,
    
    105 S. Ct. 1038
    , 
    84 L. Ed. 2d 1
     (1985)). See, also, State v. Barfield, 
    272 Neb. 502
    , 
    723 N.W.2d 303
     (2006), disapproved on other grounds, State v.
    McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
     (2007).
    34
    State v. Alarcon-Chavez, supra note 26.
    35
    Id.
    36
    Id.
    37
    Id.
    38
    Id.
    39
    Id.
    Nebraska Advance Sheets
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    appeal. Although there is no direct evidence that Wade sum-
    moned Watt to the house where the shooting occurred, there
    was evidence that Wade was observed making a telephone
    call during a lull in his verbal altercation with Jason. When
    Watt subsequently arrived at the house, Wade’s demeanor
    changed. Wade and Watt were friends, but others present at
    the house that evening did not know Watt or were only casu-
    ally acquainted with him. Although Watt shook hands with
    Adrian when he arrived, there was no indication that Adrian
    had invited him to the house. From these facts, it is at least
    arguable that a reasonable inference could be drawn that Wade
    called Watt to the scene.
    But even if the prosecutor’s comments were improper, they
    were not so numerous or egregious as to constitute plain error.
    Watt argues that the prosecutor’s statements improperly sug-
    gested that the murder was premeditated. But as we have
    discussed above, Watt’s conduct after he arrived at the house
    was sufficient to establish that he acted with deliberate and
    premeditated malice in firing the fatal shots. The prosecutor’s
    argument, whether proper or not, did not result in damage to
    the integrity, reputation, and fairness of the judicial process, or
    deprive Watt of a fair trial.
    4. Ineffective Assistance
    of Counsel
    [22] Watt was represented by different attorneys at trial and
    on direct appeal. Under Nebraska law, in order to raise the
    issue of ineffective assistance of trial counsel where appellate
    counsel is different from trial counsel, a defendant must raise
    on direct appeal any issue of ineffective assistance of trial
    counsel which is known to the defendant or is apparent from
    the record, or the issue will be procedurally barred on post-
    conviction review.40 In this appeal, Watt asserts 12 ineffective
    assistance claims directed at his trial counsel.
    [23,24] The fact that an ineffective assistance of counsel
    claim is raised on direct appeal does not necessarily mean that
    it can be resolved. The determining factor is whether the record
    40
    State v. Young, 
    279 Neb. 6
    02, 
    780 N.W.2d 28
     (2010).
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    is sufficient to adequately review the question.41 An ineffective
    assistance of counsel claim will not be addressed on direct
    appeal if it requires an evidentiary hearing.42 We conclude that
    the record is sufficient to address some but not all of Watt’s
    ineffective assistance claims.
    [25-31] Certain general principles govern our consideration
    of those claims which we are able to reach. To prevail on a
    claim of ineffective assistance of counsel under Strickland
    v. Washington,43 the defendant must show that counsel’s
    perform­ nce was deficient and that this deficient performance
    a
    actually prejudiced his or her defense.44 To show deficient
    performance, a defendant must show that counsel’s perform­
    ance did not equal that of a lawyer with ordinary training
    and skill in criminal law in the area.45 To show prejudice, the
    defendant must demonstrate reasonable probability that but
    for counsel’s deficient performance, the result of the proceed-
    ing would have been different.46 The entire ineffectiveness
    analysis is viewed with a strong presumption that counsel’s
    actions were reasonable and that even if found unreason-
    able, the error justifies setting aside the judgment only if
    there was prejudice.47 Trial counsel is afforded due deference
    to formulate trial strategy and tactics.48 When reviewing a
    claim of ineffective assistance of counsel, an appellate court
    will not second-guess reasonable strategic decisions by coun-
    sel.49 Deficient performance and prejudice can be addressed
    in either order.50 If it is more appropriate to dispose of an
    41
    State v. Ramirez, supra note 5.
    42
    Id.
    43
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    44
    State v. Nolan, supra note 6.
    45
    State v. Yos-Chiguil, 
    281 Neb. 618
    , 
    798 N.W.2d 832
     (2011).
    46
    Id.
    47
    State v. Dunkin, 
    283 Neb. 30
    , 
    807 N.W.2d 744
     (2012).
    48
    State v. Timmens, 
    282 Neb. 787
    , 
    805 N.W.2d 704
     (2011).
    49
    Id.
    50
    State v. Reinhart, 
    283 Neb. 710
    , 
    811 N.W.2d 258
     (2012).
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    ineffectiveness claim due to the lack of sufficient prejudice,
    that course should be followed.51
    With these principles in mind, we turn to Watt’s specific
    claims in the order that they are presented in his brief.
    (a) Failure to Make Record Regarding
    Lewis’ Testimony
    As noted, Watt alleged in his brief that he saw a representa-
    tive of the State “scolding” Lewis during a break in her testi-
    mony and that she was “crying as she was being scolded.”52 In
    his first claim of ineffective assistance of counsel, Watt argues
    that his trial counsel was ineffective in failing to “Object to
    the State Intimidating . . . Lewis Into Changing her Testimony
    After a Break.”53 Watt contends that his counsel’s failure to
    object or make a record of the State’s conduct prejudiced him
    because Lewis was allowed to change her testimony and testi-
    fied in a way that made it look like she was originally trying
    to protect Watt. We conclude that the record on direct appeal
    is insufficient for us to resolve this claim, and we therefore do
    not reach it.
    (b) Failure to Object to Prosecutor’s
    Closing Argument
    In his second claim, Watt contends that his trial counsel
    was ineffective in failing to “Move for a Mistrial or Object
    to the State Arguing Facts That Were not in Evidence During
    the Closing Argument.”54 This claim pertains to the portion
    of the prosecutor’s closing argument discussed above in our
    analysis of Watt’s prosecutorial misconduct claim. Because it
    was at least arguable that the inferences urged by the prosecu-
    tor’s statements were reasonable, trial counsel may have cho-
    sen not to object as a matter of trial tactics and strategy. And
    even if that were not the case, we conclude that Watt was not
    51
    See State v. Moyer, 
    271 Neb. 776
    , 
    715 N.W.2d 565
     (2006).
    52
    Brief for appellant at 37.
    53
    Id. at 38.
    54
    Id. at 39.
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    prejudiced by the absence of objections to those comments for
    the reasons set forth in our discussion above.
    (c) Failure to Depose State’s Witnesses
    In his third ineffectiveness claim, Watt contends that “trial
    counsel did not depose all of the witnesses prior to trial, and
    that the failure to do so prejudiced his defense.”55 We conclude
    that the record on direct appeal is insufficient for us to resolve
    this claim, and we therefore do not reach it.
    (d) Delay in Interviewing Witnesses
    In his fourth claim, Watt contends that his trial counsel was
    ineffective in failing to interview his own witnesses until 10
    days before trial and that the failure to speak to them sooner
    prejudiced his defense. We conclude that the record on direct
    appeal is insufficient to reach this claim.
    (e) Calling Shields as Defense Witness
    In his fifth claim, Watt contends that his trial counsel
    provided ineffective assistance by calling Shields as an alibi
    witness to testify that Watt was with her at the time of the
    shooting. Shields’ credibility was impeached when another
    witness testified that Shields was at work at the time of the
    shooting. Whether or not trial counsel performed deficiently
    in calling Shields, we conclude that even though her testimony
    was impeached at trial, there is no reasonable probability the
    outcome of the case would have been different had she not tes-
    tified at all. Accordingly, Watt cannot establish prejudice under
    the second prong of the Strickland test.
    (f) Failure to Verify Shields’
    Employment Hours
    In his sixth claim, Watt contends that his trial counsel was
    ineffective in failing to discover timesheets which would have
    verified the hours that Shields worked on the date of the crime.
    We conclude that Watt cannot establish prejudice resulting
    from this allegedly deficient performance because there is no
    reasonable probability the outcome of the trial would not have
    55
    Id.
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    672	285 NEBRASKA REPORTS
    been different if counsel had discovered the timesheets and
    decided not to call Shields as a witness.
    (g) Failure to Raise Juror Misconduct
    In his seventh claim, Watt contends that his trial counsel
    was ineffective in failing to move for a new trial based upon
    the fact that one of the jurors was having regular contact with
    a member of one of the victim’s family during the trial. We
    conclude that the record on direct appeal is insufficient to reach
    this claim.
    (h) Failure to Call Witness to Dispute
    Communication Between Watt and Wade
    In his eighth claim, Watt contends that his trial counsel was
    ineffective in failing to call witnesses who would have testified
    that there were no communications between Wade and Watt in
    the minutes and hours prior to the shooting. For the reasons
    discussed more fully above, we conclude that even if such
    witnesses had been called and so testified, there is no reason-
    able probability the outcome of the case would have been dif-
    ferent. Accordingly, Watt cannot establish prejudice under the
    Strickland test.
    (i) Failure to Utilize Incorrect
    News Story in Defense
    In his ninth claim, Watt contends that his trial counsel was
    ineffective in failing to confront witnesses regarding a news
    story which “incorrectly stated that . . . Watt was linked to the
    murder through a phone call.”56 We conclude that the record on
    direct appeal is insufficient to reach this claim.
    (j) Failure to Properly Address
    Lesser-Included Offenses
    In his 10th claim, Watt contends that his trial counsel was
    ineffective in failing to address lesser-included offenses in his
    closing argument. As we have noted, Watt’s defense was pre-
    mised upon the assertion that he was not present at the time
    of the shootings, so a decision not to argue lesser-included
    offenses was clearly a matter of trial strategy. And because the
    56
    Id. at 42.
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    STATE v. WATT	673
    Cite as 
    285 Neb. 647
    jury found, based upon sufficient evidence, that Watt commit-
    ted premeditated murder, trial counsel’s decision not to argue
    for conviction of a lesser-included offense was not prejudicial.
    This claim is therefore without merit.
    (k) Failure to Impeach Jason or
    Object to His Testimony
    In his 11th claim, Watt contends that he “has issues with
    the manner in which his trial counsel cross-examined” Jason
    in light of Jason’s deposition testimony.57 There is no merit to
    this cryptic allegation. Jason did not identify Watt as the person
    who fired the shots or testify that he observed Watt in posses-
    sion of a firearm. We conclude that the cross-examination of
    Jason could not have prejudiced Watt.
    (l) Failure to Object to Exhibit 2
    In his 12th and final claim, Watt contends that his trial coun-
    sel was ineffective in failing to object to exhibit 2, which was
    the record of his prior felony conviction. Because we conclude
    that this document was sufficient to establish that Watt had
    counsel on a prior conviction, we find this claim to be with-
    out merit.
    (m) Summary of Ineffective Assistance
    of Counsel Claims
    For the reasons discussed, we conclude that the record on
    direct appeal is insufficient to permit us to consider Watt’s
    first, third, fourth, seventh, and ninth claims of ineffective
    assistance of trial counsel. But the record is sufficient to permit
    us to consider each of his remaining claims, and we conclude
    that they are without merit.
    5. Sentences
    Finally, Watt asserts that the trial court abused its discretion
    in imposing excessive sentences. As a result of the jury’s ver-
    dict, Watt was found guilty of first degree murder, a Class IA
    felony; first degree assault, a Class II felony; and two counts of
    use of a deadly weapon, Class IC felonies. Also, the court found
    Watt guilty of possession of a deadly weapon by a prohibited
    57
    Id. at 43.
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    674	285 NEBRASKA REPORTS
    person, which is a Class ID felony. He was sentenced to a term
    of life imprisonment for first degree murder, and to terms of 15
    to 30 years for each of the other convictions, for a total prison
    term of life plus 60 to 120 years. All sentences were ordered
    to be served consecutively. Watt was given credit for 448 days’
    time served “against the sentence imposed.”
    [32,33] Pursuant to Neb. Rev. Stat. § 28-105 (Reissue 2008),
    a Class IA felony is punishable by life in prison, a Class II
    felony is punishable by a term of 1 to 50 years in prison, a
    Class IC felony is punishable by a term of 5 to 50 years in
    prison, and a Class ID felony is punishable by a term of 3 to
    50 years in prison. All of Watt’s sentences were within the
    statutory range. And as noted above, an appellate court will not
    disturb a sentence imposed within the statutory limits absent an
    abuse of discretion by the trial court.58 When imposing a sen-
    tence, a sentencing judge should consider the defendant’s (1)
    age, (2) mentality, (3) education and experience, (4) social and
    cultural background, (5) past criminal record or record of law-
    abiding conduct, and (6) motivation for the offense, as well as
    (7) the nature of the offense, and (8) the amount of violence
    involved in the commission of the crime.59 The appropriateness
    of a sentence is necessarily a subjective judgment and includes
    the sentencing judge’s observation of the defendant’s demeanor
    and attitude and all the facts and circumstances surrounding
    the defendant’s life.60
    Watt claims that the sentences were excessive because the
    shooting arose from an argument between Adrian and Wade
    and Adrian’s actions toward Wade were violent and instigated
    the shooting. As noted earlier, Watt was not a party to the quar-
    rel. Whether Adrian or Wade started the fight between the two
    of them is of no consequence to the sentences imposed on Watt
    for his crimes. The district court did not abuse its discretion in
    sentencing Watt.
    [34,35] However, we find plain error in the allocation of
    credit for time served. All of Watt’s sentences were ordered to
    58
    State v. Pereira, 
    284 Neb. 982
    , 
    824 N.W.2d 706
     (2013).
    59
    Id.
    60
    Id.
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    STATE v. WATT	675
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    285 Neb. 647
    be served consecutively, including the life sentence. Watt was
    given credit for 448 days’ time served “against the sentence
    imposed.” When a defendant is sentenced to life imprison-
    ment for first degree murder, the defendant is not entitled to
    credit for time served in custodial detention pending trial and
    sentence; however, when the defendant receives a sentence
    consecutive to the life sentence that has maximum and mini-
    mum terms, the defendant is entitled to receive credit for time
    served against the consecutive sentence.61 A sentencing judge
    must separately determine, state, and grant the amount of credit
    on the defendant’s sentence to which the defendant is entitled.62
    Watt is entitled to receive credit for 448 days served, but the
    credit should be applied against the sentence for first degree
    assault rather than against the sentence for first degree murder.
    We therefore modify Watt’s sentences by ordering that the
    credit for time served be applied against the sentence for first
    degree assault.
    VI. CONCLUSION
    For the reasons discussed, we conclude that the evidence
    was sufficient to support Watt’s convictions, that there was
    no prejudicial error in the jury instructions, and that there
    was no prosecutorial misconduct amounting to plain error.
    We also conclude that seven of Watt’s claims of ineffective
    assistance of counsel are without merit and that the record
    on direct appeal is insufficient to permit us to consider the
    other five claims. Finally, we conclude that the district court
    did not abuse its discretion in imposing sentences on each of
    the convictions. However, we conclude that the district court
    incorrectly granted Watt credit for time served against his life
    sentence. We therefore modify the credit for time served by
    applying it to the sentence for first degree assault. In all other
    respects, we affirm the judgment of the district court.
    Affirmed as modified.
    Heavican, C.J., and Cassel, J., not participating.
    61
    State v. Sing, 
    275 Neb. 391
    , 
    746 N.W.2d 690
     (2008).
    62
    Id.
    

Document Info

Docket Number: S-12-177

Citation Numbers: 285 Neb. 647, 832 N.W.2d 459

Filed Date: 4/12/2013

Precedential Status: Precedential

Modified Date: 11/5/2019

Cited By (227)

State v. Space , 312 Neb. 456 ( 2022 )

State v. Space , 312 Neb. 456 ( 2022 )

State v. Space , 312 Neb. 456 ( 2022 )

State v. Stricklin , 300 Neb. 794 ( 2018 )

State v. Nolt , 298 Neb. 910 ( 2018 )

State v. Nolt , 298 Neb. 910 ( 2018 )

State v. Hill , 298 Neb. 675 ( 2018 )

State v. Nolt , 298 Neb. 910 ( 2018 )

State v. Manjikian , 303 Neb. 100 ( 2019 )

State v. Space , 312 Neb. 456 ( 2022 )

State v. Sikes , 286 Neb. 38 ( 2013 )

State v. Nolt , 298 Neb. 910 ( 2018 )

State v. Stricklin , 916 N.W.2d 413 ( 2018 )

State v. Hill , 298 Neb. 675 ( 2018 )

State v. Stricklin , 300 Neb. 794 ( 2018 )

State v. Hill , 298 Neb. 675 ( 2018 )

State v. Vann , 306 Neb. 91 ( 2020 )

State v. Nolt , 298 Neb. 910 ( 2018 )

State v. Hill , 298 Neb. 675 ( 2018 )

State v. Manjikian , 303 Neb. 100 ( 2019 )

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