State v. McGuire, No. S–12–279.

• Court: Supreme Court of Nebraska
• Writing for the Court: Wright
• Citation: 837 N.W.2d 767,286 Neb. 494
• Docket Number: No. S–12–279.
• Decision Date: 23 August 2013
• Parties: State of Nebraska, Appellee, v. Shawn A. McGuire, Appellant.

286 Neb. 494
837 N.W.2d 767

State of Nebraska, Appellee,
v.
Shawn A. McGuire, Appellant.

No. S–12–279.

Supreme Court of Nebraska.

Filed August 23, 2013.

Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed.
Sarah M. Mooney, of Mooney Law Office, for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

Wright, Connolly, Stephan, McCormack, and Miller–Lerman, JJ.

Syllabus by the Court

[286 Neb. 494]1. Right to Counsel: Appeal and Error. An appellate court reviews the trial court's decision on a motion to withdraw as counsel for an abuse of discretion.

2. Prosecuting Attorneys: Conflict of Interest. Whether an apparent conflict of interest justifies the disqualification of other members of a prosecuting office is a matter committed to the discretion of the trial court.

3. Right to Counsel: Waiver: Appeal and Error. When determining whether a defendant's waiver of his or her former attorney's conflict of interest was voluntary, knowing, and intelligent, an appellate court applies a clearly erroneous standard of review.

4. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb.Rev.Stat. §§ 27–403 (Reissue 2008) and 27–404(2) (Cum.Supp.2012), and the trial court's decision will not be reversed absent an abuse of discretion.

5. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court.

6. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact, and, in particular, determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law.

7. 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. 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.

8. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

9. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

10. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed counsel must remain with an indigent accused unless one of the following conditions is met: (1) The accused knowingly, voluntarily, and intelligently waives the right to counsel and chooses to proceed pro se; (2) appointed counsel is incompetent, in which case new counsel is to be appointed; or (3) the accused chooses to retain private counsel.

[837 N.W.2d 774]

[286 Neb. 495]11. Attorneys at Law: Conflict of Interest. Appointed counsel may be removed because of a potential conflict of interest, and such a conflict could, in effect, render a defendant's counsel incompetent to represent the defendant and warrant appointment of new counsel.

12. Attorney and Client: Conflict of Interest: Words and Phrases. The phrase “conflict of interest” denotes a situation in which regard for one duty tends to lead to disregard of another or where a lawyer's representation of one client is rendered less effective by reason of his or her representation of another client.

13. Constitutional Law: Waiver. Generally, for a waiver of a constitutional right to be valid, it must be made voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.

14. Rules of Evidence: Other Acts.Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Cum.Supp.2012), prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. But evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under rule 404(2).

15. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is often referred to as having a “special” or “independent” relevance, which means that its relevance does not depend upon its tendency to show propensity.

16. Rules of Evidence: Other Acts: Appeal and Error. An appellate court's analysis under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Cum.Supp.2012), considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith; (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice; and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.

17. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. Rather, the determining factor is whether the record is sufficient to adequately review the question.

18. 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.

19. 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 first show that counsel's performance was deficient and second, that this deficient performance actually prejudiced his or her defense.

20. Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), deficient performance and prejudice, may be addressed in either order.

21. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. An appellate court will not second-guess reasonable strategic decisions by counsel.

22. Effectiveness of Counsel: Proof. To show prejudice on a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability [286 Neb. 496]that but for counsel's deficient

[837 N.W.2d 775]

performance, the result of the proceeding would have been different.

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

24. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

25. Homicide: Intent. An intentional killing committed without malice upon a sudden quarrel constitutes the offense of manslaughter.

26. Jury Instructions: Proof: Appeal and Error. The appellant has the burden to show that a questioned jury instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

27. Trial: Courts: Homicide: Jury Instructions. A trial court is required to give an instruction where there is any evidence which could be believed by the trier of fact that the defendant committed manslaughter and not murder. But a trial court is not obligated to instruct the jury on matters which are not supported by evidence in the record.

28. Homicide: Words and Phrases. Sudden quarrel manslaughter requires sufficient provocation which causes a reasonable person to lose normal self-control.

29. Homicide: Intent. The question for sudden quarrel manslaughter is whether there existed reasonable and adequate provocation to excite one's passion and obscure and disturb one's power of reasoning to the extent that one acted rashly and from passion, without due deliberation and reflection, rather than from judgment.

30. Homicide: Intent. The test for sudden quarrel manslaughter is an objective one.

31. Aiding and Abetting. Aiding and abetting is simply another basis for holding one liable for the underlying crime.

32. Aiding and Abetting: Proof. Aiding and abetting requires some participation in a criminal act and must be evidenced by some word, act, or deed.

33. Aiding and Abetting: Proof. For aiding and abetting, no particular acts are necessary, nor is it necessary that the defendant take physical part in the commission of the crime or that there was an express agreement to commit the crime. Mere encouragement or assistance is sufficient.

34. Criminal Law: Conspiracy. A person is guilty of criminal conspiracy if the person intends to promote or facilitate the commission of a felony, agrees with one or more persons to commit that felony, and then the person, or a coconspirator, commits an overt act furthering the conspiracy.

35. 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.

36. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing...