State v. Watt

Nebraska Advance Sheets
STATE v. WATT 647
Cite as 285 Neb. 647State 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.
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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. 647was 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. 647When 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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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. 647rifle, 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
Nebraska Advance Sheets
STATE v. WATT 655
Cite as 285 Neb. 647case. 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
Cite as 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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658 285 NEBRASKA REPORTS
“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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Cite as 285 Neb. 647of 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).
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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).
Nebraska Advance Sheets
STATE v. WATT 661
Cite as 285 Neb. 647At 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).
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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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Cite as 285 Neb. 647“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).
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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
STATE v. WATT 665
Cite as 285 Neb. 647felony 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).
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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.
Nebraska Advance Sheets
STATE v. WATT 667
Cite as 285 Neb. 647have 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.
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668 285 NEBRASKA REPORTS
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. 602, 780 N.W.2d 28 (2010).
Nebraska Advance Sheets
STATE v. WATT 669
Cite as 285 Neb. 647is 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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670 285 NEBRASKA REPORTS
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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Cite as 285 Neb. 647prejudiced 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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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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Cite as 285 Neb. 647jury 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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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.
Nebraska Advance Sheets
STATE v. WATT 675
Cite as 285 Neb. 647be 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.