State v. Morgan
| Decision Date | 20 September 2013 |
| Docket Number | No. S-12-410,S-12-410 |
| Parties | STATE OF NEBRASKA, APPELLEE, v. DANIEL MORGAN, APPELLANT. |
| Court | Kansas Supreme Court |
1. Appeal and Error. 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.
2. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
3. 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.
4. Jury Instructions. Whenever an applicable instruction may be taken from the Nebraska Jury Instructions, that instruction is the one which should usually be given to the jury in a criminal case.
5. Homicide. The absence of a sudden quarrel is not an element of the crime of murder in the first degree.
6. 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.
7. Postconviction: Effectiveness of Counsel: Records: Appeal and Error. 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 postconviction review.
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. The determining factor is whether the record is sufficient to adequately review the question.
9. 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.
10. 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 counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.
11. _: _. 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 in the area.
12. _: _. To show prejudice, the defendant must demonstrate reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.
13. Effectiveness of Counsel: Presumptions: Appeal and Error. The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice.
14. Effectiveness of Counsel: Proof. In an ineffective assistance of counsel claim, deficient performance and prejudice can be addressed in either order. If it is more appropriate to dispose of an ineffectiveness claim due to the lack of sufficient prejudice, that course should be followed.
15. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict.
Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU, Judge. Affirmed.
David S. MacDonald, Deputy Scotts Bluff County Public Defender, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
Escalating tensions culminated when Daniel Morgan shot and killed Dominic Marquez outside of Marquez' home during an altercation. Following a jury trial, the district court convicted Morgan of first degree murder and use of a firearm to commit a felony. In this direct appeal, we first reject Morgan's challenges to the step jury instruction relating to the charge of first degree murder and the court's refusal to give a "negative element of 'sudden quarrel'" instruction. We reason that (1) we have repeatedly upheld the use of a step instruction, (2) the elements of first degree murder exclude any reference to "sudden quarrel," and (3) the jury's presumed adherence to the step instruction precludes any prejudice regarding the rest of the instruction. We then turn to Morgan's four claims of ineffective assistance of counsel, finding the record insufficient to address two of them and concluding the others lack merit. Accordingly, we affirm the judgment of the district court.
Conflict arose between Morgan and Marquez over Megan Mitchell, who began dating Morgan in July 2010 after an earlier relationship with Marquez that resulted in the birth of a child.
On May 13, 2011, Morgan's frustration with Marquez came to a head. Morgan decided to go to Marquez' house in order to talk to Marquez and "kind of force the issue, either convince him to back off . . . or see . . . if he was going toback down or start a fight." Morgan sent Mitchell a text message at 12:56 p.m. which stated, "'I'm going for [Marquez], that's my only purpose now, just how it goes.'" At around 1 p.m., Morgan sent Mitchell another text message which stated, "'[Marquez' child] won't ever know him, I will take that as a bonus.' "
Morgan drove his Jeep Grand Cherokee to Marquez' house. As Marquez was leaving the house in his Chevrolet Avalanche, he "ram[med] into" Morgan's Jeep. Morgan grabbed a firearm that was underneath his back seat, "chambered a round," and fired at Marquez' Avalanche. Morgan testified that Marquez' Avalanche was "under power" and next to Morgan's Jeep at the time Morgan began firing. When Marquez backed his Avalanche into Morgan's Jeep, the Jeep was pushed sideways and Morgan was unable to disengage his Jeep from the Avalanche. Morgan emptied an entire clip while both vehicles were moving. Morgan reloaded with a second clip and continued firing in an attempt to get Marquez to "back off." Morgan fired approximately 12 rounds of the second clip, but he still was unable to disengage his Jeep from the Avalanche. Morgan then got out, walked to the front of his Jeep, and fired the remainder of the rounds at the Avalanche. At that point, Marquez "let [Morgan] off enough" that Morgan could get back in the Jeep and leave.
Neighbors provided differing accounts of the sequence of events. One neighbor testified he heard a noise that he thought was the sound of firecrackers and then saw somebody shooting a gun out of a vehicle. He then heard a noise that sounded like metal hitting metal and saw a person get out of the Jeep, walk around to the front passenger side of the Jeep, and begin shooting. A different neighbor testified that he heard a scraping sound and then a series of pops. A third neighbor heard some popping sounds outside and then heard the crash of two vehicles. She testified that she saw Marquez' vehicle backing out of the driveway and "then the other vehicle like rammed in to where the truck bed would be and like it was kind of pinned." She saw a man get out of the vehicle, go around to the front of Marquez' vehicle, raise his arm toward Marquez' windshield, and then she heard more popping sounds.
Morgan testified that all of the shots were fired after the Avalanche hit his Jeep. He denied planning or intending to kill Marquez. Rather, he testified that he fired the gun because Marquez "rammed into [his Jeep] at full speed" and prevented him from leaving. Morgan admitted that he fired toward the driver's seat, but he testified that he did not intend to shoot Marquez in the head. Marquez died of multiple gunshot wounds. His body had six gunshot wounds to the left side of the forehead, neck, and chin.
The jury returned a verdict finding Morgan guilty of first degree murder and using a firearm to commit a felony. The district court sentenced Morgan to life imprisonment for the first degree murder conviction and a consecutive term of 17 to 34 years' imprisonment for the use of a firearm conviction. Morgan timely appeals.
Morgan assigns that the district court erred in instructing the jury by (1) refusing to give his requested instruction on the negative element of "sudden quarrel" in the second degree murder instruction; (2) giving a jury instruction that was confusing and that "effectively instructed the jury to not consider" the lesser-included offenses of second degree murder and manslaughter; and (3) refusing to give his requested instruction on the constitutional right to defend self, family, home, and others.
[1] Morgan's brief contains no argument directed toward the last assignment of error regarding jury instructions. 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.1 Because Morgan did not make an argument specific to this alleged error, we do not consider it.
Morgan also assigns that he was denied the effective assistance of trial counsel by counsel's failure to (1) retain ballistic and accident reconstruction experts, (2) object to the jury's seeing Morgan in shackles, (3) object to the prosecutor's referring to the events of the day as "murder," and (4) object orfile a motion in limine...
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State v. Morgan
...286 Neb. 556837 N.W.2d 543State of Nebraska, appellee,v.Daniel Morgan, appellant.No. S–12–410.Supreme Court of Nebraska.Filed September 20, Appeal from the District Court for Scotts Bluff County: Randall L. Lippstreu, Judge. Affirmed.David S. MacDonald, Deputy Scotts Bluff County Public Def......