State v. McDaniel

771 N.W.2d 173

17 Neb. App. 725

STATE of Nebraska, appellee, v. Turner R. McDANIEL, appellant.

No. A-08-779.

Court of Appeals of Nebraska.

June 30, 2009.

Jeffery A. Pickens, of Commission on Public Advocacy, Lincoln, for appellant.

Jon Bruning, Attorney General, Erin E. Leuenberger, and James D. Smith, Lincoln, for appellee.

INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.

SIEVERS, Judge.

Turner R. McDaniel appeals the decision of the district court for Lancaster County which, after a jury trial, convicted him of first degree assault, a Class III felony. McDaniel was sentenced to 8 to 14 years' imprisonment. We affirm.

FACTUAL AND PROCUDURAL BACKGROUND

We begin with a brief summary of the factual and procedural background at the outset, which will be supplemented as necessary in our analysis.

After the downtown Lincoln bars closed in the early morning hours of May 27, 2006, McDaniel got into a scuffle with Aaron Obermier. McDaniel started to walk away, but when Obermier continued making comments toward McDaniel, McDaniel walked back to Obermier and punched him in the head, although he testified that he did so because he thought Obermier was about to hit him. Obermier fell back, striking his head on the cement. Obermier suffered substantial head and brain injuries and required a decompressive craniectomy to relieve swelling in his brain. Obermier spent 10 days in the hospital, 3 weeks at a rehabilitation hospital, and then nearly a year in an assisted living facility.

McDaniel was charged with assault in the first degree, a Class III felony. Prior to trial, McDaniel filed numerous motions in limine. One such motion in limine sought to prohibit any and all photographs depicting Obermier or his injuries taken after the assault of May 27, 2006. Another motion in limine sought to prohibit any evidence that Obermier suffered "serious bodily injury," in exchange for McDaniel's stipulation that Obermier had sustained "serious bodily injury," an element of the charged offense. Both motions in limine were overruled.

After a jury trial, McDaniel was convicted of assault in the first degree, a Class III felony. McDaniel was sentenced to 8 to 14 years' imprisonment. He now appeals with new counsel.

ASSIGNMENTS OF ERROR

McDaniel alleges that the district court erred in (1) giving an erroneous "submission" instruction to the jury, in violation of McDaniel's right to have his case decided by an impartial and uncoerced jury; (2) giving the jury an erroneous instruction after the jury announced it was at a stalemate and unable to reach a verdict, thus violating McDaniel's right to have his case decided by an impartial and uncoerced jury; and (3) refusing to direct the prosecution to accept McDaniel's offer to stipulate that Obermier suffered a serious bodily injury and, in violation of Neb.Rev.Stat. § 27-403 (Reissue 2008), allowing the prosecution to present evidence of Obermier's injury. McDaniel also alleges that he was denied his right to effective assistance of counsel because of his trial counsel's failure to object to (1) the erroneous jury instructions referenced above and (2) the evidence concerning Obermier's injury.

STANDARD OF REVIEW

Whether a jury instruction is correct is a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court. State v. Schmidt, 276 Neb. 723, 757 N.W.2d 291 (2008). 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.

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. Welch, 275 Neb. 517, 747 N.W.2d 613 (2008). Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004). When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. Id.

ANALYSIS

Evidence of Obermier's Injuries.

McDaniel argues that the district court erred in refusing to direct the prosecution to accept McDaniel's offer to stipulate that Obermier suffered a serious bodily injury and in turn by then allowing the prosecution to present evidence of Obermier's injury, in violation of § 27-403. Section 27-403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

A person commits the offense of assault in the first degree if he intentionally or knowingly causes serious bodily injury to another person. Neb.Rev.Stat. § 28-308(1) (Reissue 2008). There was no dispute that McDaniel intended to, and did, hit Obermier. And McDaniel was willing to stipulate that Obermier suffered a serious bodily injury. McDaniel simply argued that he should not be held accountable, because he acted in self-defense.

Prior to trial, McDaniel filed motions in limine to prohibit evidence of Obermier's injuries, stating in one that he was willing to stipulate that Obermier suffered "serious bodily injury" as contemplated by § 28-308(1). However, the district court overruled McDaniel's motions. During opening arguments, the State discussed Obermier's injuries and McDaniel did not object. During the testimony of a police officer, a picture of Obermier lying on a stretcher and wearing a neck collar was offered and received into evidence with McDaniel's counsel affirmatively stating, "No objection." A prosecution witness testified, without objection, that when Obermier fell and hit his head on the cement, "[h]e looked like he was kind of going into a seizure, his eyes were rolled back."

Midway through trial, McDaniel again offered to stipulate as to medical testimony that Obermier was "seriously injured" within the meaning of the charging statute, but the State was not willing to stipulate to such fact and thereby dispense with its evidence of such. McDaniel then renewed his motion in limine, which was overruled. Next, Obermier testified that he remembers nothing between being with a friend on the night of the incident and waking up in the hospital with the left side of his head "missing." He testified that a piece taken from his skull was sewn into his abdomen and that he had to wear a helmet for protection for 8 to 12 months. Obermier testified that he was at a rehabilitation hospital for 3 weeks and then spent approximately 1 year in an assisted living facility. Obermier testified that since the accident, he has had memory problems, seizures, and no sense of taste or smell and that his hearing on the left side has been affected. McDaniel did not object to this testimony from Obermier. A picture of Obermier with a misshapen head was offered and received into evidence with McDaniel's counsel stating, "No objection."

Dr. Reginald Burton, the trauma director and director of surgical critical care at the hospital where Obermier was treated, testified that when he arrived at the hospital, Obermier was listed as "Category 1," meaning that he had a life-threatening injury. Dr. Burton testified that Obermier's initial CT scans showed bleeding on both the outside and the inside of the brain. A second CT scan showed increased swelling and shift, so Obermier underwent a craniectomy. Dr. Burton testified that part of Obermier's skull was removed to allow the brain to swell and that that piece of skull was put in Obermier's abdomen to keep it sterile and alive so that it could be put back into place later. Dr. Burton testified that Obermier had a tracheotomy and a feeding tube and that he was at the hospital for approximately 10 days. After this testimony by Dr. Burton, McDaniel renewed his objection to the use of evidence and again offered to stipulate that Obermier suffered "serious bodily injury." The court overruled McDaniel's objection, and the State was not willing to stipulate. McDaniel was allowed a continuing objection, but it was overruled. Next, Obermier's CT scan images were offered and received into evidence with McDaniel's counsel affirmatively stating, "I have no objection to those exhibits." And Dr. Burton testified, without objection, as to what the CT scans showed.

Based on the foregoing account of how the evidence of the injury was adduced, it is clear that McDaniel did not properly preserve the issue of allegedly wrongful admission of the evidence of Obermier's injuries for appeal. McDaniel did make two motions in limine, which were later renewed, to prevent evidence of Obermier's injuries, and those motions were overruled. (We note that each time McDaniel made a motion in limine and offered to stipulate that Obermier had sustained serious bodily injury, he cited to Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), which we will discuss shortly.) But when specific testimony regarding Obermier's injuries was offered, McDaniel did not object. Furthermore, when pictures of Obermier or his CT scans were offered into evidence, McDaniel specifically stated that he had no objection to such exhibits. McDaniel's continuing objection was not made until nearly the end of the State's case, when the nature and seriousness of the injury were already in evidence. Thus, McDaniel did not timely object to the evidence relating to Obermier's injuries. And "[t]he failure to make a timely...