State v. Marshall, S-96-1100
| Decision Date | 02 January 1998 |
| Docket Number | No. S-96-1100,S-96-1100 |
| Citation | 573 N.W.2d 406,253 Neb. 676 |
| Parties | STATE of Nebraska, Appellee, v. Damian J. MARSHALL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Self-Defense: Jury Instructions. A trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense.
2. Self-Defense. To successfully assert the claim of self-defense, one must have a both reasonable and good faith belief in the necessity of using force. In addition, the force used in defense must be immediately necessary and must be justified under the circumstances.
3. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and Neb. Const. art. I, § 11, and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.
4. Effectiveness of Counsel: Proof. The two prongs of the test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be addressed in either order. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.
6. Judgments: Jurisdiction: Final Orders: Time: Appeal and Error. Under Neb.Rev.Stat. § 25-1931 (Reissue 1995), proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced within 30 days after the making of the final order complained of. To vest an appellate court with jurisdiction, the notice of appeal must be filed within 30 days of the entry of the final order.
7. Pleadings: Final Orders. A ruling on a plea in bar is a final order as defined in Neb.Rev.Stat. § 25-1902 (Reissue 1995).
8. Pleadings. An issue presented regarding a denial of a plea in bar is a question of law.
9. Judgments: Appeal and Error. Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court.
10. Jurisdiction: Time: Appeal and Error. Timeliness of an appeal is a jurisdictional necessity.
11. Legislature: Courts: Jurisdiction: Time: Appeal and Error. When the Legislature fixes the time for taking an appeal, the courts have no power to extend the time directly or indirectly. An appellate court may not consider a case as within its jurisdiction unless its authority to act is invoked in the manner prescribed by law.
James Walter Crampton, Omaha, for appellant.
Don Stenberg, Attorney General, and Jay C. Hinsley, Lincoln, for appellee.
Damian J. Marshall was charged with second degree murder, attempted second degree murder, and two counts of using a firearm to commit a felony. He was tried before a jury on June 25, 1996. After the presentation of all evidence in the trial, the district court overruled Marshall's request for a jury instruction on self-defense as to the second degree murder charge. On July 1, 1996, Marshall was convicted on all charges. On October 15, he was sentenced to life in prison on the second degree murder conviction, and he received consecutive sentences for the other charges totaling 14 to 18 years. Marshall now appeals.
On May 13, 1995, at approximately 11:30 a.m., Tchalla Renfrow backed the vehicle he was driving into the driveway at 6315 North 51st Avenue in Omaha, Nebraska. Ricky Booth was a passenger in the vehicle. Renfrow intended to retrieve a necklace from Tanya Straughn, Renfrow's former girl friend, who lived at the address. Renfrow testified that neither he nor Booth had any weapons at that time.
Renfrow got out of the car, went to the house, and knocked on the door. A child answered, and Renfrow asked to see Straughn. Straughn came out, and Renfrow told her he wanted the necklace. Straughn went back into the house and returned moments later with the necklace. She gave the necklace to Renfrow, and Renfrow got back into the car.
Once inside the car, Booth, sitting in the passenger seat, asked to see the necklace. Renfrow handed Booth the necklace, and then Renfrow grabbed his door to pull it shut. Before closing the driver's-side door, Renfrow noticed Marshall standing on a small hill outside the house.
Marshall, who also lived at 6315 North 51st Avenue, said to Renfrow, "Blood, you've got the nerve to come over to my house." Marshall testified that both Renfrow and Booth then reached under the seat of the car. Renfrow put his foot on the ground, presumably to get out of the car. Marshall testified that he saw a gun in Renfrow's hand at that point. Marshall then pulled a .32-caliber revolver out of his pocket and began shooting at the car. Marshall fired five or six shots. Booth and Renfrow fled the vehicle after the shooting, and Marshall ran around to the back of the house and headed toward his aunt's house.
Lawanda Littlejohn, who lived across the street from Marshall, witnessed the shooting from her window. She observed that the two individuals who fled the vehicle had no guns in their hands. Straughn was still in the driveway behind the vehicle at the time of the shooting. She testified that she saw Booth stumble or fall out of the car after the shots were fired and that he had a gun in his right hand. Renfrow testified that he did not have anything in his hands when Marshall began shooting.
Renfrow was struck by Marshall's gunshot and required surgery for his wounds. Booth died of a gunshot wound to the chest.
Marshall was charged with second degree murder in the death of Booth, attempted second degree murder in the shooting of Renfrow, and two counts of use of a firearm to commit a felony.
Following a jury trial, Marshall was convicted of all four counts on July 1, 1996. On October 15, he was sentenced to life in prison for the second degree murder conviction, 8 to 10 years' imprisonment for attempted second degree murder, and 3 to 4 years' imprisonment on each of the two use of a weapon convictions, with all sentences to run consecutively.
Two mistrials were declared before Marshall was convicted. After each mistrial, Marshall filed a plea in bar motion. He claimed that in each case the district court inappropriately excused certain jurors and declared a mistrial after the jury was seated and sworn. Marshall argued that the court should have chosen an alternate juror instead of granting a mistrial. Marshall claimed that the improper grant of a mistrial violated his constitutional protection against double jeopardy.
The district court summarily overruled both motions on June 25, 1996. The district court also denied Marshall's request for a self-defense instruction as to the charge involving Booth.
Marshall asserts 10 assignments of error, which can be summarized as follows: (1) The district court erred in granting two mistrials, as the court abused its discretion in excusing jurors after they were sworn and seated when alternates were available; (2) the district court erred in refusing to give the jury a self-defense instruction on the second degree murder charge; (3) the district court erred in refusing to allow evidence of alleged gang affiliation of the victims; and (4) Marshall was denied his right to effective assistance of counsel.
A trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense. State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997). To successfully assert the claim of self-defense, one must have a both reasonable and good faith belief in the necessity of using force. In addition, the force used in defense must be immediately necessary and must be justified under the circumstances. Kinser, supra; State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996).
Neb.Rev.Stat. § 28-1409 (Reissue 1995) provides in pertinent part:
(1) ... [T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
....
(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death [or] serious bodily harm ... nor is it justifiable if:
(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating....
Neb.Rev.Stat. § 28-1406(3) (Reissue 1995) defines "deadly force" as
force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force.
To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and Neb. Const. art. I, § 11, and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466...
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