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State of Nebraska, appellee, v.

Anthony L. Wells, appel

___ N.W.2d ___

Filed June 22, 2018. No. S-17-359.

1. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

2. Jury Instructions: Proof: Appeal and Error. In an appeal based on 

a claim of an erroneous jury instruction, the appellant has the burden 

to show that the questioned instruction was prejudicial or otherwise 

adversely affected a substantial right of the appellant.

3. Jury Instructions: Appeal and Error. All the jury instructions must 

be read together, and if, taken as a whole, they correctly state the law, 

are not misleading, and adequately cover the issues supported by the 

pleadings and the evidence, there is no prejudicial error necessitating reversal.

4. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. 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.

5. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement. An appellate 

court determines as a matter of law whether the record conclusively 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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shows that (1) a defense counsel’s performance was deficient or (2) 

a defendant was or was not prejudiced by a defense counsel’s alleged 

deficient performance.

6. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A 

defendant who moves for dismissal or a directed verdict at the close of 

the evidence in the State’s case in chief in a criminal prosecution, and 

who, when the court overrules the dismissal or directed verdict motion, 

proceeds with trial and introduces evidence, waives the appellate right 

to challenge correctness in the trial court’s overruling the motion for 

dismissal or a directed verdict but may still challenge the sufficiency of 

the evidence.

7. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record. Otherwise, the issue will be procedurally barred.

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. Such a claim may be 

resolved when the record on direct appeal is sufficient to either affirmatively prove or rebut the merits of the claim. The record is sufficient 

if it establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that 

trial counsel’s actions could not be justified as a part of any plausible 

trial strategy.

9. 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 his 

or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.

10. ____: ____. 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.

11. ____: ____. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the 

result of the proceeding would have been different.

12. Words and Phrases. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

13. Effectiveness of Counsel: Presumptions. The two prongs of the test 

under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. 

Ed. 2d 674 (1984), may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that 

counsel’s actions were reasonable.
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14. Postconviction: Effectiveness of Counsel: Records: Claims: Appeal 

and Error. In the case of an argument presented for the purpose of 

avoiding procedural bar to a future postconviction proceeding, appellate 

counsel must present a claim with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided 

upon the trial record and (2) a district court later reviewing a petition 

for postconviction relief to be able to recognize whether the claim was 

brought before the appellate court. A claim insufficiently stated is no 

different than a claim not stated at all.

Appeal from the District Court for Lancaster County: Darl

S. Ideus, Judge. Affirmed

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for 

appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy,

JJ., and Harder and Noakes, District Judges

Miller-Lerman

I. NATURE OF CASE

Anthony L. Wells appeals his convictions in the district 

court for Lancaster County for first degree murder, use of 

a firearm to commit a felony, possession of a firearm by a 

prohibited person, and unlawful discharge of a firearm. Wells 

claims, inter alia, that he was prejudiced because the court’s 

instruction regarding transferred intent incorrectly stated the 

law and that trial counsel provided ineffective assistance. We 

affirm Wells’ convictions and sentences.

II. STATEMENT OF FACTS

The charges against Wells arose from the shooting death 

of Joshua Hartwig. A group of residents had gathered outside Hartwig’s apartment building after hearing a disturbance. 

Hartwig joined the group after the disturbance appeared to 

have ended, but several minutes later a man walked up and 

fired shots at the group. Hartwig was struck by a bullet and 
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died from the gunshot wound. Testimony of witnesses at Wells’ 

trial established the following:

In the early morning hours of January 31, 2016, Wells and 

Rhani Henry, the mother of Wells’ daughter, got into a physical and verbal altercation outside Henry’s apartment building 

in Lincoln, Nebraska. Both Wells and Henry appeared to be 

intoxicated. Various residents of the apartment building heard 

the disturbance, and some residents came outside while the 

fight between Wells and Henry was ongoing. Certain residents 

separated Wells and Henry, and some residents told Wells 

that he needed to leave. Wells briefly argued with the residents, but then he got into his vehicle to leave. Before Wells 

left, some residents heard him say words to the effect that he 

would be back.

After Wells left, Hartwig and his father, Douglas Hartwig 

(Douglas), who were residents of the apartment building, 

joined the residents who remained outside. The group talked 

about the incident that had just happened. Approximately 10 

to 15 minutes later, members of the group saw or heard a man 

approach and say some words to the group. The man then fired 

several shots. Witnesses generally agreed that the man was 

wearing a dark hooded sweatshirt with the hood pulled up and 

possibly a bandanna across his face. Although the man’s face 

was obscured, certain witnesses identified the man as Wells 

based on his voice and physical features.

Douglas testified that he heard the man yell “‘hey mother 

fuckers’” before he began shooting. Douglas turned and told 

Hartwig to run for cover, and the two ran toward their apartment. Douglas tripped and fell beside a car parked in front of 

the apartment; when he fell, he saw and heard a bullet hit the 

bumper of the car. Douglas testified that he heard “[a]t least 

a half dozen” shots, then a pause, and then “at least a half 

dozen more.” After the shooting stopped, Douglas got up and 

heard one of the other residents say that Hartwig was “down.” 

Douglas found Hartwig lying face down in front of their 

apartment door. Douglas went inside to call for emergency 
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services, and when he returned to Hartwig, Douglas observed 

what appeared to be a gunshot wound to Hartwig’s upper 

shoulder. When emergency responders arrived, they attempted 

lifesaving procedures on Hartwig, but after a short period they 

declared him deceased.

Other testimony presented by the State included the testimony of Artesia Holmes, a friend of Henry. Holmes testified 

that she, Henry, and Wells went to a bar on the evening of 

January 30, 2016, to celebrate Henry’s birthday. Before they 

went to the bar, Holmes and Henry had drinks at Holmes’ 

apartment. When Wells arrived to pick them up, Holmes 

observed that Wells was in possession of a silver and black 

handgun. Henry also testified at trial, but she stated that she 

did not remember anything from that night after Wells arrived 

at Holmes’ apartment. Other witness testimony is discussed in 

the analysis below as it relates to Wells’ claims of ineffective 

assistance of trial counsel.

Physical evidence presented by the State indicated bullet 

damage to various areas of the apartment building, as well as 

to vehicles parked near the building. Law enforcement officers 

collected 13 shell casings, 1 bullet fragment, and 2 bullets 

from the scene. They found a third bullet inside a window of a 

house two blocks from the scene. A firearms examiner testified 

that the shell casings were all fired in the same firearm and 

that they matched the caliber and manufacturer of an unfired 

cartridge found in a search of Wells’ bedroom. Due to damage 

to the bullets, the examiner could not determine whether the 

bullets had been fired from the same gun.

Video from surveillance cameras in the area of the apartment building recorded around the time of the shooting indicated the following: Video from a nearby apartment complex 

showed a vehicle similar to Wells’ leaving the apartment 

building at 1:16 a.m. A surveillance camera at a business 

near the apartment recorded the sound of 13 gunshots at 1:26 

a.m. A camera located several blocks from the apartment 

showed a vehicle similar to Wells’ driving by at 1:28 a.m. 
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When that video was enhanced, it appeared to show an object 

being thrown from the vehicle. Law enforcement officers who 

searched that location found a black hooded coat with a face 

mask in the pocket. Testing of DNA on the inside of the mask 

included Wells as a major contributor.

The State also presented evidence that Wells had a prior 

conviction for possession of a firearm by a prohibited person.

After the State rested its case, Wells moved for a directed 

verdict on the count of unlawful discharge of a firearm. The 

court overruled Wells’ motion for a directed verdict, and Wells 

proceeded to present evidence in his defense.

In his defense, Wells presented testimony by two women 

who testified that Wells picked them up at a location in Council 

Bluffs, Iowa, after they finished work at around 2:05 a.m. or 

2:10 a.m. on January 31, 2016. He also presented evidence that 

two of the State’s witnesses were unable to identify Wells from 

a police photographic lineup and that one of the two identified 

another person in the photographic lineup. Both witnesses had 

identified Wells as the shooter based on his voice.

The court instructed the jury on the elements of the offenses 

with which Wells was charged, including first degree murder 

and the lesser-included offenses of second degree murder and 

manslaughter. The court also gave an instruction, over Wells’ 

objection, regarding transferred intent. The content of the relevant instructions and Wells’ objections thereto are discussed 

in the analysis below.

The jury found Wells guilty of all four counts charged—first 

degree murder, use of a firearm to commit a felony, possession 

of a firearm by a prohibited person, and unlawful discharge of 

a firearm. The court sentenced Wells to consecutive terms of 

imprisonment for life for first degree murder, for 20 to 30 years 

for use of a firearm to commit a felony, for 20 to 40 years for 

possession of a firearm by a prohibited person (which was a 

second offense), and for 10 to 10 years for unlawful discharge 

of a firearm.

Wells appeals his convictions and sentences.
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III. ASSIGNMENTS OF ERROR

Wells claims that the district court erred (1) when it gave an 

instruction regarding transferred intent which incorrectly stated 

the law and (2) when it overruled his motion for a directed verdict on the count of unlawful discharge of a firearm.

Wells further claims that his trial counsel provided ineffective assistance when counsel (1) failed to object to testimony 

regarding prior bad acts involving his assaults on Henry, (2) 

elicited and then failed to object to hearsay testimony regarding Henry’s fear of Wells, (3) failed to move for a mistrial 

based on the State’s comments during closing arguments to the 

effect that a witness feared Wells, and (4) failed to adequately 

investigate various aspects of his defense.

IV. STANDARDS OF REVIEW

[1-3] Whether jury instructions are correct is a question of 

law, which an appellate court resolves independently of the 

lower court’s decision. State v. Schwaderer, 296 Neb. 932, 

898 N.W.2d 318 (2017). In an appeal based on a claim of an 

erroneous jury instruction, the appellant has the burden to show 

that the questioned instruction was prejudicial or otherwise 

adversely affected a substantial right of the appellant. State v. 

Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016). All the jury 

instructions must be read together, and if, taken as a whole, 

they correctly state the law, are not misleading, and adequately 

cover the issues supported by the pleadings and the evidence, 

there is no prejudicial error necessitating reversal. Id.

[4] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. 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 
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beyond a reasonable doubt. State v. Cotton, 299 Neb. 650, 910 

N.W.2d 102 (2018).

[5] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question 

of law, which turns upon the sufficiency of the record to 

address the claim without an evidentiary hearing or whether 

the claim rests solely on the interpretation of a statute or 

constitutional requirement. We determine as a matter of law 

whether the record conclusively shows that (1) a defense 

counsel’s performance was deficient or (2) a defendant was 

or was not prejudiced by a defense counsel’s alleged deficient 

performance. Id.

V. ANALYSIS

1. Reading Instructions as a 

We Determine the Instruction

Transferred Intent Did Not 

the Law and Was Not Mis

Wells first claims that the district court erred when it 

gave its instruction regarding transferred intent. He notes 

that although the instruction referred to “intent,” it did not 

contain a reference to “‘deliberate and premeditated malice.’” Brief for appellant at 11. He argues that the instruction 

incorrectly stated the law as to first degree murder because it 

conflated “intent” with “‘deliberate and premeditated malice’” 

and “relieved the State of its burden to prove that Wells acted 

with malice toward at least one of the people in the group” at 

which he allegedly fired shots. Id. at 10. We conclude that the 

instructions read as a whole correctly stated the law and were 

not misleading.

In instruction No. 3, the court instructed the jury on 

“Count I,” first degree murder, by setting forth the elements 

as follows:

The elements which the State must prove beyond a 

reasonable doubt in order to convict . . . Wells of Murder 

in the First Degree are:
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1. That . . . Wells killed . . . Hartwig; and

2. That . . . Wells did so purposely; and

3. That . . . Wells did so with deliberate and premeditated malice; and

4. That . . . Wells did so on or about January 31, 2016, 

in Lancaster County, Nebraska.

Instruction No. 3 continued by instructing on the lesserincluded offenses of second degree murder and manslaughter, 

each of which included an element that Wells killed Hartwig 

“intentionally.”

Over Wells’ objection, the court also gave instruction No. 7, 

a transferred intent instruction, which stated as follows:

With respect to the charge in Count I, if you find that 

. . . Wells intended to kill a specific person, and by mistake or accident killed . . . Hartwig, the element of intent 

is satisfied even though . . . Wells did not intend to kill 

. . . Hartwig. In such a case, the law regards the intent 

as transferred from the original intended victim to the 

actual victim.

Instruction No. 11, regarding intent, instructed the jury 

that “[i]n deciding whether . . . Wells acted with intent (purpose, knowledge, wilfulness, premeditation, deliberation) you 

should consider his words and acts and all the surrounding 

circumstances.”

At the jury instruction conference, Wells objected to 

instruction No. 7, the transferred intent instruction, on the 

basis that it was not supported by the evidence. He asserted 

that the evidence showed that the shooter fired into a crowd 

but that there did not appear to be a specific intent focused on 

a single individual. In contrast, the State argued the jury could 

find Wells guilty of first degree murder based on transferred 

intent if the jury found that Wells had the requisite intent to 

kill one or more of the people who had been outside during 

the earlier altercation with Henry and who had traded words 

with Wells but that instead he shot Hartwig. The State also 

argued in the alternative that the jury could find that Wells 
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had the requisite intent to kill any or all of the people, including Hartwig, who were standing outside the building at the 

time he fired the shots, regardless of whether they had been 

present at or involved in the earlier altercation.

Although Wells’ objection to instruction No. 7 at trial 

focused on whether the instruction was supported by the evidence, he argues on appeal that the instruction incorrectly 

stated the law and was misleading. He notes that in order to 

convict him of first degree murder, the jury needed to find that 

he had killed Hartwig both “‘purposely’” and “with ‘deliberate 

and premeditated malice.’” Brief for appellant at 14 and 16. 

He argues that the phrase “the element of intent” in instruction 

No. 7 refers only to the “‘purposely’” element of first degree 

murder and not to the “‘malice’” element. Id. at 14 and 15. He 

contends that instruction No. 7 conflated “intent” and “malice” 

and allowed the jury to find him guilty of first degree murder 

if it found that he intended to shoot another person without 

requiring the jury to also find that he shot at another person 

“with ‘deliberate and premeditated malice.’” Id. at 16. The 

State generally maintains that the jury instructions as a whole 

did not prejudice Wells.

As we read their arguments, both Wells and the State do not 

dispute that the concept of transferred intent is applicable to 

first degree murder, including where, as a general proposition, 

a defendant shoots into a group of people with intent “to kill 

at least one person in the group,” reply brief for appellant at 

3, “even if [the defendant] did not intend for [the] specific” 

actual victim to be killed, brief for appellee at 14. In this 

regard, reference is made to State v. Gutierrez, 272 Neb. 995, 

726 N.W.2d 542 (2007), disapproved on other grounds, State 

v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016), a first degree 

murder case, in which we approved of a similar transferred 

intent instruction where the victims were not the intended 

target. See State v. Morrow, 237 Neb. 653, 467 N.W.2d 63 

(1991) (considering instruction similar to Gutierrez instruction in second degree murder case). So the disagreement in 
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the instant appeal is limited to whether the jury instructions 

herein satisfactorily conveyed the applicable law to the jury. 

As explained below, we conclude that the instructions, taken 

as a whole, were adequate.

Given the nature of Wells’ challenge, we must read the 

instructions as a whole to determine whether they correctly 

state the law and are not misleading. See State v. Hinrichsen, 

292 Neb. 611, 877 N.W.2d 211 (2016). Doing so, contrary to 

Wells’ urging, we do not read the instructions in this case as 

having relieved the jury of the duty to find all the elements 

of first degree murder. Instead, we note instruction No. 3 sets 

forth all the elements of first degree murder, including that 

Wells killed Hartwig and that he did so both purposely and 

with deliberate and premeditated malice. Thus, the jury clearly 

was instructed that in order to find Wells guilty of first degree 

murder, it must find that the killing was committed both purposely and with deliberate and premeditated malice. We read 

nothing in instruction No. 7 that relieves the jury of finding 

any part of these requirements.

Instruction No. 7 does not purport to substitute or eliminate 

any required element of any offense charged. Instead, instruction No. 7, the transferred intent instruction, provides that if 

the jury finds that Wells intended to kill another person but 

by mistake or accident killed Hartwig, then “the element of 

intent is satisfied” and “the law regards the intent as transferred from the original intended victim to the actual victim.” 

Instruction No. 7 is not intended as a reiteration of the elements of a crime. Instead, it serves as an explication solely 

regarding “intent.”

As noted above, Wells maintains that “the element of intent” 

in instruction No. 7 refers only to the “‘purposely’” element 

of first degree murder and not the “with ‘deliberate and premeditated malice’” element. Brief for appellant at 14 and 16. 

Contrary to Wells’ assertion, the language of instruction No. 7 

provides no basis upon which jurors would read “the element 
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of intent” as referring to purpose but believe they had thereby 

been instructed to ignore the element of deliberate and premeditated malice. Instead, “the element of intent” refers to the 

intent required for the specific crime charged.

Our reading of instruction No. 7 is bolstered by instruction No. 11, noted above, in which the court instructed the 

jury that “[i]n deciding whether . . . Wells acted with intent 

(purpose, knowledge, wilfulness, premeditation, deliberation) 

you should consider his words and acts and all the surrounding circumstances.” Instruction No. 11 communicates to the 

jury that “intent” includes, inter alia, “purpose,” “premeditation,” and “deliberation” when those are required elements of 

a charge.

We note that Wells compares the wording of instruction 

No. 7 to the wording of transferred intent instructions given in 

cases such as State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 

263 (2006), and State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 

542 (2007), disapproved on other grounds, State v. Britt, 293 

Neb. 381, 881 N.W.2d 818 (2016). He particularly notes that 

the instruction in Gutierrez refers more generally to “‘the 

crime’” committed rather than to the “element of intent.” Brief 

for appellant at 15 and 16. See, also, State v. Morrow, 237 Neb. 

653, 467 N.W.2d 63 (1991). Our analysis in this case is specific to the entirety of the instructions given in this case, and 

we make no comment on whether the instruction given in this 

case or the instruction given in another case is the preferable 

form of an instruction on transferred intent. Our conclusion is 

merely that the specific instructions given in this case, when 

read as a whole, correctly state the law, are not misleading, and 

are supported by the evidence, and there is no prejudicial error 

necessitating reversal. See State v. Hinrichsen, 292 Neb. 611, 

877 N.W.2d 211 (2016).

Because we conclude that the district court did not err when 

it gave instruction No. 7 over Wells’ objection, we reject Wells’ 

first assignment of error.
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2. Evidence Was Sufficient 

Conviction for 

Discharge of a Fi

[6] Wells next claims that the district court erred when it 

overruled his motion for a directed verdict on the count of 

unlawful discharge of a firearm. The record indicates that 

after the court overruled Wells’ motion for a directed verdict, 

he proceeded to present evidence in his defense. A defendant 

who moves for dismissal or a directed verdict at the close of 

the evidence in the State’s case in chief in a criminal prosecution, and who, when the court overrules the dismissal or 

directed verdict motion, proceeds with trial and introduces 

evidence, waives the appellate right to challenge correctness 

in the trial court’s overruling the motion for dismissal or a 

directed verdict but may still challenge the sufficiency of the 

evidence. State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 

(2016). Wells assigns error to the overruling of his motion for 

a directed verdict, but he argues the error as a challenge to 

the sufficiency of the evidence to support his conviction for 

unlawful discharge of a firearm. We consider Wells’ assignment of error as a challenge to the sufficiency of the evidence, 

but we conclude that there was sufficient evidence to support 

the conviction.

Wells was charged with unlawful discharge of a firearm, 

in violation of Neb. Rev. Stat. § 28-1212.02 (Reissue 2016), 

which provides that a person is guilty of the offense if the 

person “unlawfully and intentionally discharges a firearm at[, 

inter alia,] an inhabited dwelling house, occupied building, 

[or] occupied motor vehicle.” Wells argues that the evidence 

in this case showed that none of the vehicles that were hit by 

bullets were occupied and that there was no evidence of bullets 

hitting doors or windows of specific apartments in the building. He contends that the evidence showed that the shooter 

was aiming at the people gathered outside the building rather 

than at the building itself. He notes that a bullet was found 

inside a window of a house two blocks from the scene but he 
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argues there was no evidence that the shooter intended to fire 

at that house.

The State in its response does not rely on the bullets found 

either in the vehicles or in the house two blocks away as 

establishing this offense. Instead, the State relies on evidence 

that bullets were found in parts of the apartment building 

structure, including the rafters and supporting beams, and contends such evidence establishes that a firearm was discharged 

at the building. The State asserts that Wells does not dispute 

that the apartment building was occupied at the time the shots 

were fired.

The evidence noted by the State supports a finding that 

Wells fired shots at the apartment building and that the building was occupied at the time. The evidence was also such that 

the jury could reasonably infer that Wells intended to shoot at 

the building. The statute requires a finding that the defendant 

intentionally discharged a firearm at an occupied building; we 

do not read the statute as requiring that the firearm be aimed 

at a specific part of the building such as a specific apartment 

or at a door or window. Evidence that Wells discharged a firearm at the building, that he did so intentionally, and that the 

building was occupied at the time was sufficient to support 

the conviction.

We conclude that viewing the evidence in the light most 

favorable to the State, a rational trier of fact could have found 

the elements of unlawful discharge of a firearm beyond a reasonable doubt. We reject this assignment of error.

3. Wells’ Claims of Ineffective Assis

Trial Counsel Either Are With

or Cannot Be Determine

on Record on Direc

Wells claims that his trial counsel provided ineffective 

assistance in various respects. He specifically claims that 

counsel (1) failed to object to testimony regarding prior bad 

acts involving assaults on Henry, (2) elicited and then failed 
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to object to hearsay testimony regarding Henry’s fear of Wells, 

(3) failed to move for a mistrial based on the State’s comments 

during rebuttal closing arguments to the effect that a witness 

feared Wells, and (4) failed to adequately investigate various 

aspects of his defense. We first set forth applicable standards 

and then consider each of these specific claims below.

[7] On appeal, Wells has counsel different from his trial 

counsel. When a defendant’s trial counsel is different from his 

or her counsel on direct appeal, the defendant must raise on 

direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the 

record. Otherwise, the issue will be procedurally barred. State 

v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).

[8] The fact that an ineffective assistance of counsel claim is 

raised on direct appeal does not necessarily mean that it can be 

resolved. Id. Such a claim may be resolved when the record on 

direct appeal is sufficient to either affirmatively prove or rebut 

the merits of the claim. The record is sufficient if it establishes 

either that trial counsel’s performance was not deficient, that 

the appellant will not be able to establish prejudice, or that 

trial counsel’s actions could not be justified as a part of any 

plausible trial strategy. Id.

[9-13] 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 his or her counsel’s performance was deficient and that 

this deficient performance actually prejudiced the defendant’s 

defense. State v. Cotton, supra. 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. Id. To show prejudice, the defendant must demonstrate 

a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome. Id. The two prongs 

of this test may be addressed in either order, and the entire 
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ineffectiveness analysis should be viewed with a strong presumption that counsel’s actions were reasonable. Id.

(a) Testimony Regarding 

Prior Bad Acts

Wells claims that he received ineffective assistance when 

trial counsel failed to object to testimony regarding prior bad 

acts involving assaults on Henry. One witness who observed 

the altercation between Wells and Henry testified that he said 

to another witness that “[Henry’s] baby daddy is outside beating her up again.” Another witness who observed the altercation between Wells and Henry on January 31, 2016, testified 

that in the summer of 2015, she had witnessed an altercation 

between Wells and another woman and that at that time, Wells 

put his hand around Henry’s mouth and throat when Henry 

tried to hold him back from the other woman. Wells’ trial counsel did not object to either witness’ testimony.

Wells claims on appeal that trial counsel was ineffective 

for failing to object to what he asserts was inadmissible prior 

bad acts evidence. He argues that failure to object was deficient performance because in order for the court to admit the 

evidence, the State would have been required to articulate 

a proper purpose, other than showing Wells’ propensity for 

violence. He argues that even if the evidence were admitted 

for some proper purpose, the jury should have been given an 

instruction limiting use of the evidence to such proper purpose. 

He argues that trial counsel’s failure prejudiced him because 

the jury was able to consider the evidence as showing that he 

committed the charged crimes because he had a propensity 

for violence.

We conclude that whether or not counsel’s performance was 

deficient in this respect, Wells was not prejudiced, because 

there is not a reasonable probability that the result of the proceeding would have been different if counsel had objected 

to this testimony. Indeed, an objection and limiting instruction might have highlighted the testimony. In any event, the 

testimony noted by Wells was minor in the context of all the 
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evidence that was presented by the State. In this regard, we 

specifically note that there was other properly admitted testimony regarding Wells’ violent behavior toward Henry on the 

night of the shooting. Given all the evidence, it is not reasonably probable that the testimony noted by Wells significantly 

affected the jury’s verdict. We reject this claim of ineffective 

assistance of trial counsel.

(b) Hearsay Testimony

Wells next claims that he received ineffective assistance 

when his trial counsel elicited and then failed to object to 

hearsay testimony regarding Henry’s fear of Wells. Wells’ 

trial counsel asked one of the State’s witnesses on crossexamination whether he had talked with Henry about Wells, 

and the witness testified that he “heard some comments about 

[Henry’s] wanting to get away from” Wells and that Henry said 

“she loved him and that she was also scared of him.”

On appeal, Wells contends that trial counsel was ineffective for eliciting this testimony and for failing to object to 

the testimony as nonresponsive and as hearsay. He argues 

that the line of questioning could not be justified as a reasonable strategic decision and that the error was compounded 

when counsel failed to ask the court to strike the testimony 

as nonresponsive or as hearsay. He argues he was prejudiced 

by this testimony because it further portrayed him as having 

a violent nature.

We conclude that no prejudice was shown because this testimony, like the testimony discussed above, was minor in the 

context of all the properly admitted evidence and that there 

is not a reasonable probability the result of the proceeding 

would have been different if trial counsel either had not elicited the testimony or had objected to it. We reject this claim 

of ineffective assistance of trial counsel.

(c) Mistrial

Wells next claims that he received ineffective assistance 

when trial counsel failed to move for a mistrial based on the 
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State’s comments during rebuttal closing arguments regarding 

a witness’ alleged fear of Wells. One of the State’s witnesses 

testified that she knew Wells and had seen him a few times 

with Henry. The State asked the witness whether she saw 

Wells in the courtroom, and she replied that she did not. In its 

closing argument in rebuttal, the State referred to that witness 

and said:

I said do you see . . . Wells in the courtroom? What did 

she do? She sat there and she looked at all of you and 

looked over here and then she looked up and she was 

looking at the ceiling. I asked her if she saw . . . Wells 

in the courtroom. And she would - really? Was he up on 

the ceiling, or was she for some reason afraid of identifying him?

Wells’ trial counsel objected to the prosecutor’s statement. 

The court sustained the objection, struck the comment, and 

instructed the jury to disregard it. Wells’ counsel did not thereafter move for a mistrial.

On appeal, Wells claims trial counsel was ineffective for 

failing to move for a mistrial because, given other improperly admitted evidence regarding Wells’ violent nature, the 

court’s instruction to disregard the State’s comment could not 

“‘unring’ the bell.” Brief for appellant at 26. He argues that 

his defense was prejudiced because a defense motion would 

have been sustained and a mistrial would have been granted. 

Wells relies on the proposition that a mistrial may be warranted 

where unfairness has been injected into a jury trial and so permeates the proceedings that no amount of admonition to the 

jury can remove the unfairness to a party. State v. Pierce, 231 

Neb. 966, 439 N.W.2d 435 (1989).

We disagree with Wells’ assessment that a mistrial would 

have been granted. The court’s sustaining Wells’ objection and 

admonishing the jury were a sufficient response to the State’s 

comment, and we do not think the comment injected unfairness 

that so permeated the proceedings that admonition to the jury 

could not remove it. There was not a reasonable probability 
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that a mistrial would have been granted if counsel had moved 

for it, and we therefore reject this claim of ineffective assistance of counsel.

(d) Cumulative Effect

Wells argues that even if each of the preceding alleged failures is insufficient in itself to establish ineffective assistance 

of counsel, the cumulative effect of all the alleged deficiencies 

amounts to ineffective assistance. We determined above that 

none of the alleged deficiencies prejudiced Wells’ defense, and 

we likewise conclude that the cumulative effect of the alleged 

deficiencies did not prejudice Wells’ defense.

(e) Investigation

Finally, Wells claims that trial counsel was ineffective for 

failing to adequately investigate various aspects of his defense. 

He asserts that the record is not sufficient to review these 

claims of inadequate investigation on direct appeal but that 

he is raising the claims in order to preserve them for collateral review.

[14] In the case of an argument presented for the purpose 

of avoiding procedural bar to a future postconviction proceeding, appellate counsel must present a claim with enough particularity for (1) an appellate court to make a determination 

of whether the claim can be decided upon the trial record and 

(2) a district court later reviewing a petition for postconviction 

relief to be able to recognize whether the claim was brought 

before the appellate court. State v. Cotton, 299 Neb. 650, 910 

N.W.2d 102 (2018). A claim insufficiently stated is no different 

than a claim not stated at all. Id.

Wells set forth the following claims in his brief:

Wells’ trial counsel provided ineffective assistance when, 

despite Wells’ requests, he failed to independently investigate or present the following defenses, and he failed 

to interview, depose, or subpoena each of the following 

entities and potential witnesses who would have provided 

evidence helpful to Wells’ defense:
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• Trial counsel received information from . . . Henry that 

an acquaintance’s boyfriend committed the shootings, 

but [counsel] failed to investigate;

• Trial counsel failed to impeach [a police witness] when 

he testified that . . . sight of Wells’ vehicle [was lost 

in] the [video] recordings when Wells’ vehicle, after 

leaving the . . . apartments following the argument with 

Henry, went eastbound . . . , despite trial counsel’s possession of police reports in which [the police witness] 

and/or other officers stated that the video showed Wells 

traveling eastbound . . . , then Southbound . . . , a route 

that took Wells to . . . Council Bluffs;

• Trial counsel failed to subpoena cell phone records that 

would have demonstrated (1) pinging locations making 

it impossible for him to commit the shooting, and (2) 

that Wells’ regular calling pattern was very similar to 

the calling pattern relied upon by the State to argue in 

support of Wells’ guilt;

• Trial counsel failed to introduce into evidence a 

photograph of Wells at the time of the shootings to 

demonstrate that his hair did not match the witness’ 

descriptions;

• Trial counsel failed to subpoena or otherwise obtain 

video evidence from businesses along the route from 

the . . . apartments to . . . Council Bluffs that would 

have shown he was not present at the . . . apartments at 

the time of the shootings;

• Trial counsel failed to consult or engage a voice recognition expert to contest the State’s witnesses’ claims 

that they recognized the voice of the shooter as Wells[’] 

despite having very little, if any, exposure to the sound 

of Wells’ voice;

• Trial counsel failed to consult or engage a firearms 

expert to evaluate and contest the testimony of the 

State’s firearms expert, whose testimony overstated the 

likelihood that it was a gun like the one Wells allegedly 
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set on Holmes’ bed that fired the bullets and casings 

found at the scene of the shootings;

• Trial counsel failed to move for testing of swabs taken 

from Wells’ hands that, had they been subjected to gunshot residue testing, would have shown that Wells did 

not fire a gun at the time of the shootings.

Brief for appellant at 33-34.

We agree that these claims cannot be determined on direct 

appeal, because the record on appeal does not disclose what 

steps trial counsel took in regard to these avenues of investigation, what would have been found if the various actions had 

been taken by counsel, and whether the findings would have 

helped Wells’ defense. We include this listing so that a district court reviewing any petition for postconviction relief that 

Wells might bring in the future will be able to recognize what 

claims were brought before this court on direct appeal.

VI. CONCLUSION

We conclude that instruction No. 7, the transferred intent 

instruction, when read with all the instructions, did not misstate the law; that there was sufficient evidence to support 

Wells’ conviction for unlawful discharge of a firearm; and that 

Wells’ claims of ineffective assistance of trial counsel either 

are without merit or cannot be determined based on the record 

in this direct appeal. We therefore affirm Wells’ convictions 

and sentences.

Affirme