Summary
The Nebraska Supreme Court affirmed Kevin J. Watt’s convictions for first degree murder, first degree assault, two counts of using a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. The court rejected challenges concerning sufficiency of the evidence, jury instructions, prosecutorial misconduct, ineffective assistance of counsel, proof of a prior felony conviction, and sentencing, but modified the credit for time served.
Topics
Practice areas
Questions Presented
- Whether sufficient evidence supported Watt's convictions for first degree murder, first degree assault, and the related deadly-weapon offenses.
- Whether the certified judgment from Watt's prior federal felony conviction sufficiently established that the prior conviction was counseled for purposes of the possession-of-a-deadly-weapon-by-a-prohibited-person conviction.
- Whether the jury instructions were erroneous or plainly erroneous, including the step instruction, the use of the word 'must,' the failure to adequately address sudden-quarrel manslaughter, and the inclusion of manslaughter in the deadly-weapon instruction.
- Whether alleged witness intimidation and closing-argument remarks constituted prosecutorial misconduct warranting reversal.
- Which ineffective-assistance claims could be resolved on direct appeal and whether the resolvable claims satisfied Strickland.
- Whether the district court imposed excessive sentences or improperly allocated credit for time served.
Holdings
- The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Watt was the shooter and that he killed Adrian purposely and with deliberate and premeditated malice and intentionally or knowingly caused serious bodily harm to Jason.
- The certified federal judgment listing an attorney of record was sufficient to establish that Watt was counseled for his prior felony conviction.
- The challenged jury instructions did not constitute reversible or plain error.
- The alleged witness intimidation could not be reviewed because the record was silent and the claim was not preserved; the challenged closing-argument remarks did not constitute plain error warranting reversal.
- Five ineffective-assistance claims could not be resolved on direct appeal because the record was insufficient; the remaining seven claims were without merit.
- The sentences were within the statutory limits and were not an abuse of discretion, but the 448 days of credit for time served had to be applied to the consecutive first degree assault sentence rather than the life sentence.
Key quotations
“Intent to kill may be inferred from deliberate use of a deadly weapon in a manner reasonably likely to cause death.” (285 Neb. at 659)
“A prosecutor’s conduct that does not mislead and unduly influence the jury does not constitute misconduct.” (285 Neb. at 667)
“Watt is entitled to receive credit for 448 days served, but the credit should be applied against the sentence for first degree assault rather than against the sentence for first degree murder.” (285 Neb. at 675)
Factual background
During an argument at an Omaha residence, Kevin J. Watt arrived in an SUV, later approached a minivan, retrieved or possessed a rifle, and fired multiple shots toward people fighting on the porch. Adrian Lessley was killed and Jason Marion was seriously wounded. Witnesses identified Watt as the shooter, and police recovered spent rifle cartridges, ammunition, and an empty rifle case, although the firearm itself was never located. Watt presented alibi testimony, but the State impeached one alibi witness with employment records.
Procedural history
Watt was convicted after a jury trial of first degree murder, first degree assault, and two weapons offenses. The district court separately found him guilty of possession of a deadly weapon by a prohibited person and imposed consecutive sentences totaling life plus 60 to 120 years, granting 448 days of credit against the sentence imposed. On direct appeal, the Nebraska Supreme Court rejected Watt's sufficiency, jury-instruction, prosecutorial-misconduct, ineffective-assistance, prior-conviction, and excessive-sentence claims, but modified the allocation of the credit for time served.
Remand instructions
Modify the sentences so that the 448 days of credit for time served are applied against the first degree assault sentence rather than the life sentence; affirm the judgment in all other respects.