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State v. Wells

Supreme Court of Nebraska

June 22, 2018

State of Nebraska, appellee,
Anthony L. Wells, appellant.

          1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         2. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

         3. 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 misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.

         4. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. 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.

         5. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. An appellate court determines as a matter of law whether the record conclusively [300 Neb. 297] shows that (1) a defense counsel's performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel's alleged deficient performance.

         6. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State's case in chief in a criminal prosecution, and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court's overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence.

         7. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.

         8. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. Such a claim may be resolved when the record on direct appeal is sufficient to either affirmatively prove or rebut the merits of the claim. The record is sufficient if it establishes either that trial counsel's performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel's actions could not be justified as a part of any plausible trial strategy.

         9. 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 his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

         10. ___: ___. To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

         11. ___: ___.To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

         12. Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

         13. Effectiveness of Counsel: Presumptions. The two prongs of the test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel's actions were reasonable.

          [300 Neb. 298] 14. Postconviction: Effectiveness of Counsel: Records: Claims: Appeal and Error. In the case of an argument presented for the purpose of avoiding procedural bar to a future postconviction proceeding, appellate counsel must present a claim with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to be able to recognize whether the claim was brought before the appellate court. A claim insufficiently stated is no different than a claim not stated at all.

          Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge. Affirmed.

          Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Harder and Noakes, District Judges.

          MILLER-LERMAN, J.

         I. NATURE OF CASE

         Anthony L. Wells appeals his convictions in the district court for Lancaster County for first degree murder, use of a firearm to commit a felony, possession of a firearm by a prohibited person, and unlawful discharge of a firearm. Wells claims, inter alia, that he was prejudiced because the court's instruction regarding transferred intent incorrectly stated the law and that trial counsel provided ineffective assistance. We affirm Wells' convictions and sentences.


         The charges against Wells arose from the shooting death of Joshua Hartwig. A group of residents had gathered outside Hartwig's apartment building after hearing a disturbance. Hartwig joined the group after the disturbance appeared to have ended, but several minutes later a man walked up and fired shots at the group. Hartwig was struck by a bullet and [300 Neb. 299] died from the gunshot wound. Testimony of witnesses at Wells' trial established the following:

         In the early morning hours of January 31, 2016, Wells and Rhani Henry, the mother of Wells' daughter, got into a physical and verbal altercation outside Henry's apartment building in Lincoln, Nebraska. Both Wells and Henry appeared to be intoxicated. Various residents of the apartment building heard the disturbance, and some residents came outside while the fight between Wells and Henry was ongoing. Certain residents separated Wells and Henry, and some residents told Wells that he needed to leave. Wells briefly argued with the residents, but then he got into his vehicle to leave. Before Wells left, some residents heard him say words to the effect that he would be back.

         After Wells left, Hartwig and his father, Douglas Hartwig (Douglas), who were residents of the apartment building, joined the residents who remained outside. The group talked about the incident that had just happened. Approximately 10 to 15 minutes later, members of the group saw or heard a man approach and say some words to the group. The man then fired several shots. Witnesses generally agreed that the man was wearing a dark hooded sweatshirt with the hood pulled up and possibly a bandanna across his face. Although the man's face was obscured, certain witnesses identified the man as Wells based on his voice and physical features.

         Douglas testified that he heard the man yell '"hey mother fuckers'" before he began shooting. Douglas turned and told Hartwig to run for cover, and the two ran toward their apartment. Douglas tripped and fell beside a car parked in front of the apartment; when he fell, he saw and heard a bullet hit the bumper of the car. Douglas testified that he heard "[a]t least a half dozen" shots, then a pause, and then "at least a half dozen more." After the shooting stopped, Douglas got up and heard one of the other residents say that Hartwig was "down." Douglas found Hartwig lying face down in front of their apartment door. Douglas went inside to call for emergency [300 Neb. 300] services, and when he returned to Hartwig, Douglas observed what appeared to be a gunshot wound to Hartwig's upper shoulder. When emergency responders arrived, they attempted lifesaving procedures on Hartwig, but after a short period they declared him deceased.

         Other testimony presented by the State included the testimony of Artesia Holmes, a friend of Henry. Holmes testified that she, Henry, and Wells went to a bar on the evening of January 30, 2016, to celebrate Henry's birthday. Before they went to the bar, Holmes and Henry had drinks at Holmes' apartment. When Wells arrived to pick them up, Holmes observed that Wells was in possession of a silver and black handgun. Henry also testified at trial, but she stated that she did not remember anything from that night after Wells arrived at Holmes' apartment. Other witness testimony is discussed in the analysis below as it relates to Wells' claims of ineffective assistance of trial counsel.

         Physical evidence presented by the State indicated bullet damage to various areas of the apartment building, as well as to vehicles parked near the building. Law enforcement officers collected 13 shell casings, 1 bullet fragment, and 2 bullets from the scene. They found a third bullet inside a window of a house two blocks from the scene. A firearms examiner testified that the shell casings were all fired in the same firearm and that they matched the caliber and manufacturer of an unfired cartridge found in a search of Wells' bedroom. Due to damage to the bullets, the examiner could not determine whether the bullets had been fired from the same gun.

         Video from surveillance cameras in the area of the apartment building recorded around the time of the shooting indicated the following: Video from a nearby apartment complex showed a vehicle similar to Wells' leaving the apartment building at 1:16 a.m. A surveillance camera at a business near the apartment recorded the sound of 13 gunshots at 1:26 a.m. A camera located several blocks from the apartment showed a vehicle similar to Wells' driving by at 1:28 a.m. [300 Neb. 301] When that video was enhanced, it appeared to show an object being thrown from the vehicle. Law enforcement officers who searched that location found a black hooded coat with a face mask in the pocket. Testing of DNA on the inside of the mask included Wells as a major contributor.

         The State also presented evidence that Wells had a prior conviction for possession of a firearm by a prohibited person.

         After the State rested its case, Wells moved for a directed verdict on the count of unlawful discharge of a firearm. The court overruled Wells' motion for a directed verdict, and Wells proceeded to present evidence in his defense.

         In his defense, Wells presented testimony by two women who testified that Wells picked them up at a location in Council Bluffs, Iowa, after they finished work at around 2:05 a.m. or 2:10 a.m. on January 31, 2016. He also presented evidence that two of the State's witnesses were unable to identify Wells from a police photographic lineup and that one of the two identified another person in the photographic lineup. Both witnesses had identified Wells as the shooter based on his voice.

         The court instructed the jury on the elements of the offenses with which Wells was charged, including first degree murder and the lesser-included offenses of second degree murder and manslaughter. The court also gave an instruction, over Wells' objection, regarding transferred intent. The content of the ...

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