State v. Young

780 N.W.2d 28, 279 Neb. 602
CourtNebraska Supreme Court
DecidedMarch 26, 2010
DocketS-09-246
StatusPublished
Cited by83 cases

This text of 780 N.W.2d 28 (State v. Young) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Young, 780 N.W.2d 28, 279 Neb. 602 (Neb. 2010).

Opinion

780 N.W.2d 28 (2010)
279 Neb. 602

STATE of Nebraska, appellee,
v.
Antoine D. YOUNG, appellant.

No. S-09-246.

Supreme Court of Nebraska.

March 26, 2010.

*31 Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant.

Antoine D. Young, pro se.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

*32 STEPHAN, J.

Antoine D. Young was convicted of first degree murder and use of a deadly weapon in the commission of a felony in the death of Ray S. Webb. Young was sentenced to life imprisonment on the murder conviction and to 40 to 40 years' imprisonment on the weapons conviction, to be served consecutively. In this direct appeal, separate briefs were filed by Young's appellate counsel and by Young pro se.

I. BACKGROUND

On the afternoon of August 25, 2007, Webb was fatally shot while seated behind the steering wheel of a vehicle which was stopped in the drive-through lane of a fast-food restaurant in Omaha, Nebraska. Two witnesses testified that immediately prior to the shooting, they were standing with Young outside a barbershop located across the street from the restaurant. Both witnesses stated that they observed Young cross the street, approach Webb's vehicle, and fire the fatal shots from a handgun. One of these witnesses stated that Young was bald with a full beard and was wearing a white T-shirt, black shorts, a black baseball hat, and tennis shoes at the time of the shooting.

Another witness was a passenger in a vehicle which was stopped in front of Webb's vehicle at the time of the shooting. This witness testified that after hearing what he first thought were fireworks, he turned and saw a bearded man dressed in black standing at the driver's side of Webb's vehicle. This witness again heard noises which he thought were fireworks, and he observed a shiny metallic object in the air in front of the man standing outside Webb's vehicle.

A defense witness testified that as he drove past the restaurant, he heard shots and observed a bearded man dressed in a black hat, a black T-shirt, white shorts, and white tennis shoes approach Webb's vehicle from the rear, fire a black pistol, and then flee from the back of the restaurant. He testified that Young was not the person he observed.

Reginald Clark, a defense witness who had been acquainted with Young since childhood, testified that as he drove past the restaurant, he observed two unidentified men dressed in black walking quickly from the drive-through lane. From a photograph, Clark identified Webb's vehicle as that which he observed in the drive-through lane as he drove past. Clark did not recognize the men he observed walking away from the restaurant, and he did not hear gunfire or see a weapon. Clark testified that when he stopped at a nearby intersection, another motorist came alongside his vehicle and made a comment which led him to believe that "[s]omething bad" had occurred at the restaurant. Clark testified that he did not observe Young in the vicinity of the restaurant as he drove past.

Another witness, "Ramona," testified that on the afternoon of the shooting, she was leaving the restaurant and observed Webb, with whom she was acquainted, standing outside his vehicle, arguing with an unidentified man and woman. When the argument had concluded, Ramona saw Webb enter his vehicle and saw the man with whom he had been arguing approach another vehicle, retrieve an unidentified object, and place it beneath his shirt. Ramona testified that she then observed the unidentified man approach Webb's vehicle and heard two gunshots, but that she did not see the shooting.

Testifying in his own defense, Young stated that he was not present at the barbershop or the restaurant on the afternoon of August 25, 2007, but instead spent the afternoon at a family gathering at a city park located approximately 4 miles from the restaurant. Two persons testified *33 that they saw Young at the gathering, and a third person who attended the gathering testified that he observed Young's vehicle parked nearby. In response to a question during his cross-examination, Young testified that he was successful and did well in college. The prosecutor impeached this testimony using a transcript showing that Young had failed most of his college courses.

During the jury instruction conference, there was no discussion of an alibi instruction. Approximately 5 minutes after the instructions were given and the case was submitted to the jury, the trial judge reconvened the jury in the presence of Young and counsel and stated that he had forgotten to give an alibi instruction. The judge then instructed the jury as follows: "At issue in this case is whether [Young] was present at the time and place of the crime. The State must prove that [Young] was present during the time and place of the crime." Outside the presence of the jury, Young's counsel objected on the ground that the instruction should have stated that the State's burden of proof was "beyond a reasonable doubt." The prosecutor objected on grounds that the alibi instruction was given after closing arguments and was unnecessary. The court overruled both objections.

The jury returned guilty verdicts, and the court accepted the verdicts and adjudged Young guilty on both counts. After he was sentenced and his motion for new trial was overruled, Young perfected this timely appeal. His appellate counsel is not the same attorney who represented him at trial.

II. ASSIGNMENTS OF ERROR

The sole assignment of error in the brief filed by Young's appellate counsel is that Young received ineffective assistance of counsel at trial. Young argues specifically in that brief that his trial counsel

(1) failed to offer any evidence whatsoever from three critical exculpatory witnesses, the identity of which counsel was aware prior to trial, that Young was not the person who committed the homicide, (2) failed to elicit evidence regarding Young's lack of motive to kill Webb, (3) failed to develop fully Young's alibi defense, (4) failed to tender an alibi instruction during the instruction conference, (5) failed to elicit testimony from [Young's brother], (6) failed to elicit corroborative hearsay testimony from ... Clark, and (7) failed to prepare Young properly to testify.[1]

Young also submitted a pro se brief, in which he argued that (1) the prosecution failed to establish venue, (2) the prosecutor made improper remarks during closing argument, (3) the trial judge erred in instructing the jury, (4) the trial judge failed to properly accept the jury's guilty plea and adjudge Young guilty of the crimes charged, and (5) his trial counsel was ineffective.

III. STANDARD OF REVIEW

A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. The determining factor is whether the record is sufficient to adequately review the question.[2]

IV. ANALYSIS

1. ERROR ASSIGNED BY APPELLATE COUNSEL

Under Nebraska law, in order to raise the issue of ineffective assistance of *34 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.[3] Our rule differs from that announced by the U.S. Supreme Court in Massaro v.

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Cite This Page — Counsel Stack

Bluebook (online)
780 N.W.2d 28, 279 Neb. 602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-young-neb-2010.