State v. Miranda

313 Neb. 358

984 N.W.2d 261

STATE of Nebraska, appellee,

v.Marlon E. MIRANDA, Jr., appellant.

No. S-22-196.

Supreme Court of Nebraska.

Filed January 27, 2023

Thomas C. Riley, Douglas County Public Defender, and Kyle M. Melia, for appellant.

Douglas J. Peterson, Attorney General, Siobhan E. Duffy, Lincoln, and Erin E. Tangeman, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

In this direct appeal, Marlon E. Miranda, Jr. (Miranda), challenges his convictions, pursuant to jury verdict, for first degree murder and use of a deadly weapon to commit a felony. He contends that the evidence was insufficient to support his convictions and that he received ineffective assistance of trial counsel. Finding no merit to his appeal, we affirm.

II. BACKGROUND

We begin by setting forth a brief background. Miranda and his wife, Sharon Miranda, separated in 2019. Sharon later met and began dating Jose Santos Parra-Juarez, the victim. The convictions flowed from a shooting that occurred early in the morning on June 13, 2020, which we will discuss in more detail later in the opinion.

The State charged Miranda with first degree murder, a Class IA felony,¹ and use of a deadly weapon (firearm) to commit a felony, a Class IC felony.² Miranda pled not guilty. A jury later convicted him on both counts. The court sentenced Miranda to life imprisonment on the murder conviction and to 45 to 50 years’ imprisonment on the weapon conviction, to be served consecutively.

Miranda filed a timely appeal. Because of the imposition of life imprisonment, the appeal was placed on our docket.³

III. ASSIGNMENTS OF ERROR

Miranda assigns six errors. His first two assignments of error relate to the sufficiency of the evidence. He assigns that the evidence presented at trial lacks the probative value to sustain a guilty verdict because, he asserts, no rational trier of fact could find him guilty of first degree murder or use of a deadly weapon to commit a felony.

The remaining assignments of error relate to ineffective assistance of counsel. Miranda assigns, reordered, that his trial counsel performed deficiently in (1) "failing to meaningfully participate in voir dire," (2) "failing to adequately prepare for a first degree murder trial by failing to review discovery with [him] and failing to file pretrial motions," (3) "never [seeking] out plea negotiations with the State," and (4) "failing to zealously advocate for [him]." He asserts that but for his trial counsel's deficient performance, the result of the proceeding below would have been different.

IV. STANDARD OF REVIEW

In an appeal of a criminal conviction, an appellate court reviews the evidence in a light most favorable to the prosecution.⁴ Additional standards of review will be set forth, as appropriate, in the analysis.

V. ANALYSIS

1. SUFFICIENCY OF EVIDENCE

Miranda first contends that the evidence presented at trial was insufficient to support his convictions.

(a) Standard of Review

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 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

(b) First Degree Murder

On appeal, Miranda argues that the State's evidence was insufficient to show he committed first degree murder. Under Nebraska law, a person commits first degree murder when he or she kills another person "purposely and with deliberate and premeditated malice."⁶ Miranda is not disputing that he killed Parra-Juarez. Instead, he challenges the sufficiency of the evidence based on his claim that "[t]he State did not introduce any direct evidence of [his] state of mind" at the time of the killing.⁷ The State asserts that it presented circumstantial evidence to prove he killed Parra-Juarez purposely and with deliberate and premeditated malice, and contends that it met its burden of proving each element beyond a reasonable doubt. We agree.

(i) Elements

Before addressing Miranda's specific arguments, we begin by elaborating on the elements of first degree murder at issue. Purposeful, deliberate, premeditated murder may be proved circumstantially.⁸ In the homicide context, deliberate means not suddenly, not rashly, and requires that the defendant considered the probable consequences of his or her act before doing the act.⁹ The term "premeditated" means to have formed a design to commit an act before it was done.¹⁰ One kills with premeditated malice if, before the act causing death occurs, one has formed the intent or determined to kill the victim without legal justification.¹¹

No particular length of time for premeditation is required, provided the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death.¹² The design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed.¹³ The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.¹⁴

(ii) Additional Facts

Pursuant to our standard of review, we recite these facts in the light most favorable to the State. On the evening of June 12, 2020, Miranda went to Epoca Cantina, a bar in Omaha, Nebraska (the bar), to celebrate his friend's birthday. Sharon arrived separately with a group of friends. At that time, Miranda and Sharon had been separated for more than a year, and Miranda was aware that Sharon was dating Parra-Juarez.

Below is an aerial photograph, which is a cropped excerpt from exhibit 339, used by the State as demonstrative evidence. We refer to it in this section only for illustrative purposes. Although it is difficult to read, the bar's name appears in yellow immediately above the yellow "x."

Shortly after Sharon arrived at the bar (entrance marked by the yellow "x") with her group of friends, they met up with Parra-Juarez. Miranda abruptly approached the group and seemed upset. He "waved off" Parra-Juarez and said something to him. The group then left Miranda and found a table in the back of the bar. Later that evening, Sharon got up from the table to go to the restroom, and Miranda walked across the bar and approached Parra-Juarez. He grabbed Parra-Juarez’ face, twisted his neck, and pushed him to the ground. Parra-Juarez did not fight back. The bar owner escorted Miranda out of the bar.

The bar owner went back inside the bar and grabbed a towel for Parra-Juarez, whose face was bleeding. He then asked Parra-Juarez where he and his friends were staying for the night and pointed out where their hotel was located. The bar owner stated that he would let Sharon, Parra-Juarez, and the rest of their group out through the back door of the bar (on the north side of the bar building depicted in the photograph), in the hope that they would not cross paths with Miranda—whom he had escorted out of the front door—on their way to the hotel.

After Sharon's group left the bar, Miranda tried to get back inside to grab his coat and his hat. The bar owner retrieved the items for him. Miranda then walked to his car (represented on the photograph by a red rectangle), which was parked on Capitol Avenue, and retrieved his gun. (This path is marked on the photograph by a red arrow.) The gun was in a holster, which he clipped to his pants pocket beneath his shirt. After retrieving his gun, Miranda walked back to the bar. (This path is marked on the photograph by the blue arrow.) His friend came outside to talk with him and told him that Sharon's group had exited through the back door. Miranda left and walked toward North 12th Street. (This path is marked on the photograph by the purple arrow from the bar entrance to North 12th Street.) When he reached the street, he turned right on the sidewalk and walked north, in the opposite direction from where his car was parked. (This path is marked by the remainder of the purple arrow.)

Sharon, Parra-Juarez, and the rest of their group were walking north on the sidewalk on North 12th Street. Miranda quickly approached the group from behind with his hand under his shirt, in his waistband. Someone screamed that Miranda had a gun. He then pulled the gun out and began pointing it at Sharon and Parra-Juarez, who were walking together at the back of the group. When Miranda caught up to them, he reached over Sharon and shot Parra-Juarez, who fell to the ground. While Parra-Juarez was lying on the ground, Miranda shot him multiple times in the torso and neck—shooting him a total of six times—and then grabbed Sharon by the arm and pushed her further up the sidewalk.

An off-duty police officer was working security in the area and heard the gunshots. He ran in the direction of the gunfire and observed Parra-Juarez lying on the ground at North 12th Street. He ran past Parra-Juarez toward Miranda, who was pointing a gun at Sharon and banging her head against the wall. The officer drew his handgun and identified himself as a police officer. Miranda did not drop the gun. The officer fired nine times in Miranda's direction, striking him once above the knee and on the surface of his ankle. Miranda fell backward and was eventually detained. When asked to describe the events that occurred, Miranda stated that Parra-Juarez "got up on his wife or got too close to his wife, so he got shot."

Parra-Juarez was taken to a hospital and later pronounced dead. The fragments recovered during an autopsy revealed that Miranda had shot him using an "RIP, Radically Invasive Projectile style bullet," which has eight points...