State v. Custer, 871 N.W.2d 243

Background

Defendant Jason Custer shot and killed Adam McCormick outside a Sidney, Nebraska residence on Nov. 3, 2012; charged with first degree murder, use of a firearm to commit a felony, and being a felon in possession of a firearm.
Conflicting testimony: eyewitnesses (Leal, Wright) said Custer exited a running truck, approached McCormick with a rifle and fired twice within seconds; Custer claimed he found a gun in the truck when he feared a setup, approached to talk, and shot only after McCormick lunged with a knife.
Jury convicted on all counts; trial court sentenced Custer to life for first degree murder, 20–50 years for use of a firearm, and 10–20 years for felon-in-possession; sentences ordered consecutively.
At sentencing the court orally stated life without possibility of parole (erroneous under Nebraska law); written order omitted that language. The court also awarded 503 days’ presentence credit in a way the State later argued was ambiguous/incorrect.
Custer appealed claiming: (1) trial court erred by refusing a choice-of-evils instruction on felon-in-possession, (2) premeditation instruction improperly added “instantaneous” language, (3) insufficient evidence for first degree murder, (4) prosecutorial misconduct in closing (comments about silence/preparation), and (5) sentencing errors (parole language and excessive/concurrent/consecutive and credit application).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Custer)	Held
Whether a choice-of-evils instruction on felon-in-possession was required	N/A (State opposed); court found no instruction warranted by evidence	Custer: he took the gun only because he reasonably believed it was necessary to avoid an imminent setup/harm and thus was entitled to § 28-1407 instruction	Refused — error not shown; proposed instruction not in record and, on facts, he took possession before any immediate harm existed, so no entitlement to the defense
Whether premeditation instruction adding that premeditation may be “instantaneous” violated statute	N/A	Custer: wording conflicts with statutory definition and effectively permits simultaneous intent/act	Affirmed — Court held “instantaneous” clarifies that intent need not exist for appreciable time but still must precede the act; consistent with precedent
Sufficiency of evidence for first degree murder (deliberate, premeditated malice)	State: eyewitnesses and conduct supported premeditation and lack of self‑defense	Custer: evidence supports self‑defense / sudden quarrel; he only grabbed gun when threatened	Affirmed — viewing evidence in State’s favor, jury could find deliberate and premeditated malice; credibility conflicts for jury to resolve
Prosecutorial comments in closing regarding failure to report and having time to craft testimony — were these improper Doyle/Fletcher silence comments?	State: comments addressed credibility and pretrial preparation, and referred to pre‑Miranda conduct — permissible	Custer: comments improperly relied on his post‑arrest/trial silence and prejudiced his right to remain silent	No plain error — remarks addressed pre‑arrest/pre‑Miranda silence and credibility; not improper under controlling precedent
Sentencing: (a) oral ‘‘without possibility of parole’’; (b) excessiveness; (c) presentence credit application	State: written order controls; credit must be applied correctly against aggregate consecutive terms	Custer: oral parole language invalidated sentence; argued excessive terms and requested different concurrency; also contested credit application	(a) Modified — written order (omitting parole ban) controls; court may excise erroneous portion; (b) No abuse of discretion — sentences within statutory limits and court considered factors; (c) Modified — 503 days credit applied to aggregate of the non‑life consecutive terms (proper plain‑error correction)

Key Cases Cited

State v. Planck, 289 Neb. 510 (statement of burden for instruction error)
State v. Mowell, 267 Neb. 83 (discussion of choice‑of‑evils and its elements)
State v. Taylor, 282 Neb. 297 (approving instruction language that premeditation may be instantaneous)
Doyle v. Ohio, 426 U.S. 610 (prohibition on using postarrest silence after Miranda for impeachment)
Fletcher v. Weir, 455 U.S. 603 (limits of Doyle for pre‑Miranda postarrest silence)
State v. Lofquest, 227 Neb. 567 (criticizing vague reference to defendant’s silence that could encompass post‑Miranda period)
State v. Jacob, 253 Neb. 950 (comments about pretrial preparation are credibility arguments, not Doyle comments)
State v. Conover, 270 Neb. 446 (sentence without parole erroneous but not void)
State v. Ely, 287 Neb. 147 (presentence credit against consecutive non‑life terms)
State v. Williams, 282 Neb. 182 (presentence credit applies only once; crediting against aggregate of consecutive terms)