State v. Wells, 300 Neb. 296

Background

On Jan. 31, 2016, shots were fired at a group outside an apartment building; Joshua Hartwig was killed. 13 shell casings and other ballistics evidence were recovered.
Witnesses identified the shooter as Anthony L. Wells based on voice/appearance; surveillance video showed a vehicle like Wells’ leaving the scene and an object thrown from the vehicle; a hooded coat with a mask containing Wells’ DNA was recovered.
The State linked shell casings to an unfired cartridge found in Wells’ bedroom; Wells had a prior conviction for possession of a firearm by a prohibited person.
Wells was charged with first degree murder (with transferred intent instruction given), use of a firearm to commit a felony, possession of a firearm by a prohibited person, and unlawful discharge of a firearm.
The jury convicted on all counts; Wells received consecutive lengthy prison terms. He appealed, arguing (inter alia) error in the transferred intent instruction, insufficiency of evidence on unlawful discharge, and ineffective assistance of trial counsel.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Wells)	Held
1) Transferred-intent jury instruction	Instruction legally correct; transferred intent applies to murder where shooter intended to kill someone in the group	Instruction No. 7 misstated law by referring only to “intent” and thereby conflating intent with deliberate, premeditated malice required for 1st-degree murder	Instruction No. 7, read with all instructions (including elements requiring purpose and deliberate, premeditated malice), did not misstate law; no prejudicial error; affirmed
2) Sufficiency of evidence for unlawful discharge of a firearm (§ 28-1212.02)	Evidence showed bullets struck the occupied apartment building structure (rafters/beams); intentional discharge at an occupied building supports conviction	Shots were aimed at people outside, not at the building; bullets in vehicles/nearby house don’t prove intent to fire at occupied building	Viewing evidence in light most favorable to prosecution, a rational juror could find intentional discharge at an occupied building; conviction upheld
3) Ineffective assistance — failure to object to prior-bad-acts and hearsay; failure to move for mistrial	Trial counsel’s failures were not prejudicial given strength of State’s case; objections/limiting instructions might have emphasized the testimony	Counsel was deficient for failing to object to inadmissible prior-bad-acts and hearsay and for failing to seek mistrial after prosecutor’s closing comment	Appellate record does not show prejudice; individual claims rejected (no reasonable probability of different outcome); no mistrial would likely have been granted; claim fails
4) Ineffective assistance — inadequate investigation (preservation for collateral review)	Many investigative steps would have been futile or are unsupported by record; some issues are suitable for postconviction development	Counsel failed to investigate alibi/phone records/videos/voice/forensic testing which could have exonerated Wells	Claims cannot be resolved on direct appeal due to inadequate record; preserved for postconviction review where factual development may occur

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard requires deficient performance and prejudice)
State v. Gutierrez, 272 Neb. 995 (transferred intent applicable in murder when intended victim differs from actual victim)
State v. Hinrichsen, 292 Neb. 611 (instructions reviewed as a whole; appellant bears burden to show prejudice)
State v. Cotton, 299 Neb. 650 (standard for sufficiency review and when ineffective-assistance claims can be decided on direct appeal)
State v. Olbricht, 294 Neb. 974 (preservation/waiver when defendant proceeds after directed-verdict denial)