STEPHAN, J.
Adrian Lessley and Jason Marion were shot during an altercation 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 possession of a deadly weapon by a prohibited person. After sentencing, 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.
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,
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...." 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, including 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 disrespectful. Adrian and Wade then began arguing. Adrian returned to the porch, and Wade made another call on his cellular telephone. 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.
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
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 driveway. 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 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 pillar 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 gunshots, 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
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 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 driveway. 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 hospitalized for approximately 2 weeks and underwent three surgeries. 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 abdominal 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 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
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 customer 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 found Watt guilty of possession of a deadly weapon by a prohibited person. Watt was sentenced to a term of life imprisonment 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."
Watt assigns the following errors: (1) There was insufficient 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.
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.
Whether jury instructions given by a trial court are correct is a question of law.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by
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 convictions, 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 premeditated malice.
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 seriously 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 consumed alcohol and had "smoked a PCP stick" prior to arriving at the house. Watt argues that "given [Will's] criminal record, prior statements and relationship to the victims," he "was simply not credible."
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.
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
With respect to the element of "deliberate and premeditated malice," we have stated:
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.
There is also evidence which supports a reasonable inference that Watt planned his actions and considered their consequences 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 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
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.
The offense is defined by Neb. Rev.Stat. § 28-1206(1) (Cum.Supp.2012), which provides: "Any person who possesses 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 conviction 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.
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 attorney 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 nothing foundationally to object to. And I note that [Watt] was represented by [counsel] during the process. I have no objection." The exhibit was received.
On appeal, Watt claims that receipt of this exhibit constituted 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."
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.
Jury instruction No. 5 given by the trial court was a step instruction which generally followed the format of NJI2d Crim. 3.1. On appeal, Watt argues that the district court erred by including language in instruction No. 5 which differed 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."
We find no plain error by virtue of the slight discrepancy 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 necessitating reversal.
Watt also contends on appeal that instruction No. 5 was improper because of the use of the word "must" instead of "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 instruction constituted plain error.
Watt also contends that instruction No. 5 did not adequately inform the
We considered a post-Smith challenge to jury instructions in State v. Alarcon-Chavez,
Watt also objects to the inclusion of manslaughter in instruction 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:
Watt's objection to the inclusion of manslaughter in this instruction was overruled by the trial court.
In arguing that the instruction was in error, Watt relies on State v. Sepulveda,
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 manslaughter. The conviction for use of a deadly weapon to commit a felony was based on the first degree murder conviction. The inclusion of manslaughter
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.
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."
The absence of a record regarding the claimed witness intimidation precludes our consideration of the issue. Failure to make a timely objection waives the right to assert prejudicial error on appeal.
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 evidence that Wade was talking on his cellular telephone before Watt arrived at the scene, there was no proof that he was speaking with Watt.
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 misconduct during closing
Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor's remarks were improper.
We find no plain error with respect to the two brief segments of the prosecutor's closing argument challenged on appeal. Although there is no direct evidence that Wade summoned 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 casually 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.
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.
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 is sufficient to adequately review the question.
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,
With these principles in mind, we turn to Watt's specific claims in the order that they are presented in his brief.
As noted, Watt alleged in his brief that he saw a representative of the State "scolding" Lewis during a break in her testimony and that she was "crying as she was being scolded."
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."
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."
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.
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
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 been different if counsel had discovered the timesheets and decided not to call Shields as a witness.
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.
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 reasonable probability the outcome of the case would have been different. Accordingly, Watt cannot establish prejudice under the Strickland test.
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."
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 premised 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 jury found, based upon sufficient evidence, that Watt committed 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.
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.
In his 12th and final claim, Watt contends that his trial counsel 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 without merit.
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.
Finally, Watt asserts that the trial court abused its discretion in imposing excessive sentences. As a result of the jury's verdict, 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 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."
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.
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 quarrel. 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.
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.
