State v. Wells, 912 N.W.2d 896

Background

Defendant Anthony L. Wells was convicted by a jury of first-degree murder, use of a firearm to commit a felony, possession of a firearm by a prohibited person (second offense), and unlawful discharge of a firearm for the killing of Joshua Hartwig.
Facts: Wells had an earlier altercation outside an apartment building; shortly after he left in a vehicle, a hooded shooter fired multiple rounds into a group gathered outside; Hartwig was struck and died.
Physical and forensic evidence: 13 shell casings at the scene (same firearm), bullets/bullet fragment recovered, surveillance video showing a vehicle like Wells’ in the area, and a hooded coat with a face mask containing DNA that included Wells as a major contributor.
Defense evidence: alibi witnesses placing Wells in Council Bluffs after 2:05–2:10 a.m.; some eyewitnesses failed to identify Wells from photo lineups; identification by voice was contested.
Trial issues: (1) court gave a transferred-intent jury instruction over Wells’ objection; (2) motion for directed verdict on unlawful discharge was overruled; (3) multiple ineffective-assistance claims against trial counsel were raised, some preserved and some presented to preserve postconviction review.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Wells)	Held
Transferred-intent instruction correctness	Instruction properly explains transferred intent and, read with all instructions, does not relieve State of proving all elements of first-degree murder	Instruction No. 7 misstated law by referring only to “intent” and thereby conflating intent with "deliberate and premeditated malice," reducing State’s burden	Court affirmed: instruction, read as a whole with other instructions (including element list and intent definition), correctly stated law and was not misleading
Sufficiency for unlawful discharge of firearm (§ 28-1212.02)	Evidence showed bullets struck the apartment structure (rafters/beams) of an occupied building; intentional discharge at building supports conviction	Shooter aimed at people outside, not the building; no proof bullets hit occupied parts or that shooter intended to fire at the building	Court affirmed: evidence was sufficient for a rational juror to find intentional discharge at an occupied building beyond a reasonable doubt
Failure to object to prior-bad-acts and hearsay testimony; failure to move for mistrial	Testimony was admissible or, even if not, minor in context; court’s curative instruction sufficed; no reasonable probability of different outcome	Trial counsel was deficient for not objecting; admission/prejudice affected jury’s view, prejudicing outcome	Court held no prejudicial ineffective assistance: even assuming some deficiency, Wells did not show reasonable probability of a different result
Alleged inadequate investigation and other trial preparation failures	State did not need to litigate investigatory detail on direct appeal; claims preserved for possible postconviction review	Counsel failed to investigate alibi, phone records, voice/forensics experts, video, GSR testing, and impeachment; record insufficient to evaluate effectiveness on direct appeal	Court held these investigation claims cannot be resolved on direct appeal (record inadequate) but were preserved for postconviction review

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
State v. Hinrichsen, 292 Neb. 611 (Neb. 2016) (jury instructions must be read together; appellant must show prejudice from an instruction)
State v. Cotton, 299 Neb. 650 (Neb. 2018) (standard for sufficiency of the evidence review and ineffective-assistance-on-appeal principles)
State v. Gutierrez, 272 Neb. 995 (Neb. 2007) (approved transferred-intent instruction in murder context)
State v. Morrow, 237 Neb. 653 (Neb. 1991) (transferred-intent instruction discussion)
State v. Olbricht, 294 Neb. 974 (Neb. 2016) (preservation: moving for directed verdict then presenting evidence waives challenge to overruling but allows sufficiency challenge)
State v. Britt, 293 Neb. 381 (Neb. 2016) (discussed in relation to Gutierrez; not relied on for transferred intent here)