Stacy, J.
This is the second time Vencil Leo Ash III has been before us challenging his conviction for first degree murder. In 2012, Ash was convicted of the first degree murder of Ryan Guitron and was sentenced to life in prison. On direct appeal, we reversed, and remanded for a new trial. We found the trial court erred in denying Ash's request for a continuance after the State disclosed, on the brink of trial, that a codefendant would be testifying pursuant to a plea agreement.
Ash was retried in 2015, and again was found guilty of first degree murder and sentenced to life in prison. He timely filed this direct appeal and was appointed different counsel to represent him on appeal. We affirm his conviction and sentence.
On November 4, 2003, Guitron was reported missing by his girlfriend. Guitron's remains were discovered nearly 7 years later, on April 8, 2010, under a woodpile on an abandoned farm in rural Kimball County,
In August 2003, Ash and his 15-year old girlfriend, Kelly Meehan (whom Ash later married), began living with Guitron in Fort Collins, Colorado. Guitron, Ash, and Meehan were methamphetamine users. After living together for several weeks, Ash and Meehan moved out of Guitron's trailer home and began living in a tent near Grover, Colorado. While living in the tent, Ash retrieved the .380-caliber pistol from his sister because Meehan wanted some form of protection. Ash was with his sister when she purchased the pistol on August 1, 2003, in Walsenburg, Colorado.
Meehan testified that Ash threatened to kill Guitron after finding Meehan's bra and underwear in Guitron's backpack, along with a pornographic magazine. On the day of the murder, Ash asked Guitron to travel with Ash and Meehan to get methamphetamine. Ash drove them in Guitron's car to an abandoned farm. Ash, Guitron, and Meehan smoked methamphetamine during the drive, and again upon arriving at the abandoned farm.
According to Meehan, all three got out of Guitron's car and walked around the farm. They discovered parts of a baby bed, and Ash instructed Meehan to collect the parts and take them back to the car. On her way back to the car, Meehan heard a gunshot. She looked back and saw Ash standing over Guitron's body, holding the .380-caliber pistol. Meehan testified this was the first time she had seen the pistol that day, because Ash normally tucked the pistol in his pants. Meehan stated she did not hear or see a struggle or see any other weapon during the incident. Ash then walked to the car, got a pair of black gloves, and told Meehan he was going to bury Guitron under a woodpile near the farm. According to Meehan, after Ash covered up the body, they left to get gas and then drove Guitron's car back to Fort Collins. During the drive to Fort Collins, Ash told Meehan that Guitron had come after him with a knife, so Ash shot him.
Ash denied finding Meehan's bra and underwear in Guitron's backpack and claimed he and Guitron were good friends. Ash claimed that on the day of the murder, he, Guitron, and Meehan went in Guitron's car to get some iodine from Guitron's source so that Ash could "`cook'" more methamphetamine.
During the search, Guitron wanted to smoke more methamphetamine, but discovered none was left. According to Ash, Guitron said that "`he was going to kill that ... bitch,'" referring to Meehan, and "`took off running'" with the rifle in
After the murder, Ash traded Guitron's car for a Cadillac Escalade. Ash and Meehan then drove the Escalade to Guitron's home in Fort Collins and loaded some of Guitron's property into the Escalade.
On October 18, 2003, 3 days after Guitron's death, Ash was arrested on a warrant for parole violations. The Escalade remained with Meehan after Ash's arrest. The following day, Meehan was arrested on a juvenile warrant, and the .380-caliber pistol was discovered under Meehan's bed at Ash's sister's house, where Meehan had been living. After Meehan's arrest, the Escalade was towed and several of Guitron's possessions were found inside, including his credit card and various personal items. Pieces of the baby bed gathered on the day of the murder were also found in the Escalade. Later, on November 24, law enforcement retrieved the .380-caliber pistol from Ash's sister. It was not disputed that this was the weapon used to shoot Guitron.
After Guitron's disappearance, Ash was questioned by law enforcement on several occasions. On November 4, 2003, Ash indicated he had last seen Guitron on October 17. Ash claimed Guitron was supposed to pick him up to work at an oil rig the next day, but never showed up. On March 18, 2004, Ash was interviewed by the lead investigator into Guitron's disappearance. At that time, Ash claimed he had seen Guitron alive on October 18, 2003, at Guitron's home. Ash denied killing Guitron, but at the end of the interview, unsolicited, he asked whether they had found Guitron's body. Ash then stated that if Guitron was dead, law enforcement would have found his body because it had been quite some time since Guitron's disappearance.
On April 2, 2010, Meehan was interviewed by law enforcement on a different matter. During the interview, she volunteered that Ash had killed Guitron. Meehan was then escorted by the lead investigator to try to locate the abandoned farm, but she failed to do so. A few days later, on April 7, the lead investigator again interviewed Ash. During this interview, Ash initially denied shooting Guitron, but then admitted shooting Guitron twice to protect Meehan because Guitron was shooting at her. Ash then directed law enforcement to the abandoned farm, where Guitron's remains were later discovered.
Officers also located two .22-caliber rifle casings at the abandoned farm. One casing was found on top of the dirt, and the other on top of some cement; neither casing was rusted. Based on the locations of the two casings, law enforcement determined the casings could not have been ejected to their respective locations from where Guitron had been shot, as shown by physical evidence that still remained at the scene, or from where his remains were located.
Ash presents four assignments of error on appeal: (1) There was insufficient evidence to support the jury verdict, (2) the trial court erred in various evidentiary rulings made during trial, (3) the trial court erred in overruling his motion for new trial, and (4) his trial counsel was ineffective.
In reviewing 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.
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
A trial court's order denying a motion for new trial is reviewed for an abuse of discretion.
An ineffective assistance of counsel claim is raised on direct appeal when allegations of deficient performance are made 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.
Whether a claim of ineffective assistance of trial counsel raised on direct appeal may be determined on direct appeal is a question of law.
Ash argues the evidence was insufficient to convict him of first degree murder. His brief highlights several inconsistencies in the evidence — particularly in the testimony of Meehan. Ash suggests that because of these inconsistencies, the evidence presented lacked sufficient probative value. We disagree.
The evidence submitted at the second trial, including Meehan's testimony, was substantially similar to the evidence submitted at the first trial. In Ash's first direct appeal, we specifically analyzed whether the evidence presented was sufficient to convict Ash of first degree murder, and found it was.
Ash assigns broadly that there were "[e]rrors in the ruling of the trial court during the trial."
During opening statements, the prosecutor gave a detailed and lengthy summary of the procedural and substantive history of the case. As part of that summary, the prosecutor said detectives had a "big break" in April 2010 when Meehan was interviewed on an unrelated incident. The prosecutor explained that "during that interview," Meehan told investigators she had information about Guitron's disappearance. The prosecutor then went on to describe Meehan's general version of events and, in doing so, referred sometimes to Meehan's anticipated trial testimony using typical phrases like "she will tell you" and "she will testify" and other times referred instead to what Meehan "said." Ash did not object to the prosecutor's remarks during the State's opening statement. Instead, after both parties' opening statements were finished and the jurors were excused for the evening, Ash made a record of his objection that the prosecutor's opening statement referenced inadmissible hearsay, and moved for mistrial. In opposing the motion, the State conceded the prosecutor's remarks had been imprecise, but argued the point was to "get across the fact that this is [Meehan's] story and this is the story [the jury would] hear ... when she comes up [to] testify." The court overruled the motion for mistrial.
Ash contends the overruling of his motion for mistrial was error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.
Assuming without deciding that Ash's objection adequately preserved the issue for appellate review, we conclude the court did not abuse its discretion in overruling the motion for mistrial. Our review of the record demonstrates the prosecutor's description of Meehan's testimony was ambiguous in terms of tense, and the jury could easily have understood the prosecutor's remarks as foretelling Meehan's trial testimony, rather than referencing what she actually said to investigators in 2010. The prosecutor's occasional reference to "she said" rather than "she will testify" in the opening statement is not the type of egregious or prejudicial statement that requires a mistrial, particularly when the jury was specifically admonished that counsel's statements were not evidence. There is no merit to this assignment of error.
At trial, the State presented evidence that Ash had pawned two items belonging to Guitron: an Oakland Raiders jacket and a television. The jacket was pawned 2 days before the murder and the television 2 days after. Ash objected to this evidence based on Neb.Rev.Stat. § 27-404 (Cum.Supp.2014), arguing it was inadmissible character evidence. The court overruled his objections and admitted the evidence.
Ash asserts in his brief that this evidence was erroneously admitted, but he presents no argument as to how or why the court erred, and we decline to speculate. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.
In his brief, Ash asserts that Meehan testified she regretted telling investigators about Ash's role in Guitron's murder, because she married Ash in 2010. Ash also notes there was evidence he and Meehan had several conversations about her anticipated testimony. Other than generally referencing this evidence, Ash's brief cites no evidentiary ruling he claims was erroneous and presents no argument that the admission of this evidence resulted in any type of error or prejudice. We are left to speculate as to both the source and the nature of any error, and we decline to do so.
An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.
During trial, an investigator was asked by the State whether Guitron was "wanted" for any criminal activity at the time of his disappearance. Ash objected to the question on relevance, but the objection was overruled. The investigator responded that Guitron did not have any outstanding warrants.
On appeal, Ash contends his objection should have been sustained because whether Guitron had warrants at the time of his disappearance was not relevant evidence. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
At the jury instruction conference, Ash asked that the jury be instructed using only the statutory definition of premeditation set forth in Neb.Rev.Stat. § 28-302(3) (Reissue 2008), which provides: "Premeditation shall mean a design formed to do something before it is done." In jury instruction No. 5, the district court instead gave a premeditation definition consistent with NJI2d Crim. 4.0: "Premeditated/Premeditation means to form the intent to do something before it is done. The time needed for premeditation may be so short as to be instantaneous provided that the intent to act is formed before the act and not simultaneously with the act."
Ash's brief contends this was error, but does not argue or explain why. Because the alleged error is not both assigned and argued, it is not preserved for our review.
During the State's examination of an investigator, the following exchange took place:
The court then sustained defense counsel's objection, struck the investigator's response, and admonished the jury to disregard
Generally, error cannot be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material.
Ash argues the district court erred in overruling his motion for new trial, because the evidence was insufficient to show the murder occurred in Nebraska. But there was evidence presented at trial via Meehan, and Ash's own testimony from the first trial, that the murder occurred on a farm located in Kimball County. That evidence was sufficient to support the venue of the murder in Kimball County. There was no abuse of discretion in denying Ash's motion for new trial on this basis.
We note that in his brief, Ash also makes reference to testimony he gave at the hearing on his motion for new trial — testimony to the effect that his earlier statements and testimony regarding the location of the murder were involuntary. However, because Ash presents no argument with respect to these statements, and because no error was assigned regarding these statements, we do not address this issue on appeal.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
Ash is represented on direct appeal by different counsel than the counsel who represented him at trial. 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.
The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved on direct appeal.
The parties stipulated that on December 13, 2003, law enforcement conducted a traffic stop of a car owned by Guitron. The driver told officers she received the car from her brother. The brother had received the car from Ash after trading the Escalade. The parties also stipulated that the .380-caliber pistol identified as the murder weapon was submitted for DNA testing, but that no usable DNA profile was discovered. Ash argues his trial counsel performed deficiently by entering into these stipulations, because it "made it easier for the [S]tate to try the case."
Defense counsel does not perform in a deficient manner simply by failing to make the State's job more difficult. And Ash offers no other argument as to why his counsel's performance regarding these stipulations was deficient. Most notably, there is no argument that the State would have been unable to offer the evidence in the absence of the stipulations. This assignment of error is without merit.
Dr. Peter Schilke, a pathologist, performed an autopsy on Guitron's remains. He testified on direct that he sent the jawbone and teeth to a forensic dentist for a positive identification of the body. Schilke then testified that he was aware the forensic dentist was able to positively identify the remains as those of Guitron. Ash's counsel did not object to this testimony from Schilke. On appeal, Ash contends this was deficient performance because the testimony was hearsay.
Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.
During trial, portions of an April 7, 2010, recorded interview between Ash and law enforcement were played for the jury. Trial counsel did not object. On appeal, Ash contends the failure to object was
When making an ineffective assistance of counsel claim on direct appeal, allegations of prejudice are not required.
Because he has not indicated any grounds which support an objection to this evidence, Ash has not raised this claim with sufficient particularity, and we therefore conclude it is not properly raised in this direct appeal.
Ash argues in his brief that his trial counsel possessed a report showing female DNA was on the barrel of the murder weapon, and he claims counsel performed deficiently by failing to offer the DNA report at trial. We need not determine whether counsel was deficient in failing to offer the report, because even if he was, the record affirmatively shows Ash was not prejudiced by the failure to offer the report. Evidence at trial demonstrated that two females — Meehan and Ash's sister — came in contact with the gun after the murder but before the gun was recovered by police. Under the circumstances, the presence of female DNA evidence on the barrel of the gun was not exculpatory to Ash. This assignment of error is without merit.
Ash argues his trial counsel had a statement from Aquilla Rios wherein Rios stated that Meehan told her she was in the car when the murder happened. Ash argues his trial counsel performed deficiently by failing to get the statement from Rios into evidence. Ash suggests Rios' statement would have affected Meehan's credibility, because Meehan testified at trial that she was walking to the car when she heard the gunshot. We conclude the record on direct appeal is insufficient to address this claim.
In our prior opinion,
We conclude the record is insufficient to review this claim on direct appeal.
Ash claims his trial counsel possessed a psychiatric evaluation performed on Meehan when she was 16, but never offered or used the evaluation at trial. Ash makes no further allegation about what the contents of the evaluation were, how it could have been used, or what it might have been offered to prove. We conclude Ash has not alleged deficient performance with sufficient particularity, and therefore this claim is not properly raised in this appeal.
Ash argues his trial counsel was ineffective because he did not file a motion to suppress any of the State's evidence. Ash does not identify any specific evidence which should have been suppressed, nor does he specify any legal basis for filing such a motion. We conclude Ash has not alleged deficient performance with sufficient particularity, and therefore this claim is not properly raised in this appeal.
Ash asserts that his trial counsel visited him only two or three times while he was incarcerated. Ash also asserts he gave his trial counsel a letter from Meehan in which she confessed to the murder, but his counsel made no use of that letter at trial.
We understand this assignment to allege trial counsel performed deficiently by not adequately preparing for trial and not presenting exculpatory evidence. We determine the record is insufficient to review this claim on direct appeal.
Ash's testimony from the first trial was offered into evidence at the second trial. His counsel objected to portions of the prior testimony, and those portions were redacted and not admitted at the second trial. Ash contends his trial counsel was ineffective for failing to object to the entirety of Ash's former trial testimony.
Ash does not, however, explain what was objectionable about the remainder of his prior testimony or allege why his counsel performed deficiently in failing to object to the prior testimony in its entirety. We conclude this claim has not been presented with sufficient particularity, and therefore it is not properly raised in this appeal.
Ash argues his trial counsel never followed up on Ash's assertions that the crime was committed in Colorado, rather than Nebraska. We conclude the record affirmatively disproves this allegation of ineffective assistance of counsel. Ash testified at his first trial that the crime occurred in Nebraska. After his second trial, during the hearing on his motion for new trial, Ash testified that after the guilty verdict was returned, he called his attorney and provided the attorney with information that the murder occurred in Colorado. The record affirmatively shows that Ash's counsel followed up on the information, and eventually filed a motion for new trial based on the information. This assignment of error is without merit.
At the hearing on the motion for new trial, the State offered exhibits 138 to 143, which generally consisted of prior statements made by Ash concerning the location of Guitron's murder and revealing Ash's motivation for challenging the location of the murder after his conviction. Ash contends his trial counsel was ineffective in failing to object to his prior statements.
Ash does not indicate on what grounds counsel could have objected. We conclude deficient performance has not been alleged with sufficient particularity, and therefore this claim is not properly raised in this appeal.
Ash argues his trial counsel had information about a witness named "Todd Rowell" who "had some information which would have corroborated [Ash's] testimony."
Ash does not explain what information Rowell possessed or what part of Ash's testimony would have been corroborated by Rowell. This allegation of deficient performance is not made with sufficient particularity, and therefore this claim is not properly raised in this appeal.
Ash contends his trial counsel was deficient for failing to move for a directed verdict. He implies such a motion should have been made because the evidence was insufficient to convict. We disagree.
As already noted, there was sufficient evidence in the record to support the jury verdict. The record thus affirmatively shows counsel was not deficient in failing to move for a directed verdict, and this claim is without merit.
Ash's claim that there was insufficient evidence to support the verdict is without merit. None of Ash's claims of trial court error have merit. The motion for new trial was properly denied. Any claim of ineffective assistance of counsel is either affirmatively disproved by the record, not sufficiently presented for our review, or not able to be reviewed on the record before us. Accordingly, Ash's conviction and sentence are affirmed.
AFFIRMED.
