state and federal constitutions; 6) Trial counsel performed deficiently by not r S-24-0972 State of Nebraska (Appellee) v. Kashuan McCree (Appellant)
Appeal from the District Court for Lancaster County, Judge Matthew O. Mellor
Attorneys: Kristi Egger and Sarah P. Newell (Lancaster County Public Defender’s Office for Appellant) and P. Christian Adamski (Asst. Attorney General for Appellee)
Criminal: Life imprisonment for first-degree murder and use of a firearm to commit a felony
Proceedings below: A jury convicted Appellant of first-degree murder and use of a firearm to commit a felony. The district court gave him consecutive sentences of seventy (70) years to life imprisonment for first-degree murder and fifteen (15) to twenty (20) years in prison for use of a firearm to commit a felony. Life imprisonment cases are direct appeals to the Nebraska Supreme Court.
Issues: Appellant assigns the following errors: 1) The court erred by admitting evidence of Appellant’s purported propensity for violence under Neb. Rev. Stat. § 27-404 because the State denied its intention to introduce such evidence during pretrial motions, Appellant did not open the door by introducing evidence about his character, and the court failed to follow the proper procedure for admitting such evidence. This violated Appellant’s right to due process and a fair trial under the state and federal constitutions; 2) Trial counsel performed deficiently by failing to object to evidence about Appellant’s purported propensity towards violence under Neb. Rev. Stat. §§ 27-404 and 27-403, failing to place these comments in context through cross-examination, and failing to request a limiting instruction as to “state of mind.” This violated Appellant’s right to effective assistance of counsel and a fair trial under the state and federal constitutions; 3) The court erred by admitting evidence of Appellant’s desire to obtain a teardrop tattoo because the State laid inadequate foundation to reliably establish its meaning and the foundation laid invited the jury to speculate that Appellant had gang ties, which was inadmissible under Neb. Rev. Stat. §§ 27-401, 403, and 404. This violated Appellant’s right to due process and a fair trial under the state and federal constitutions; 4) Trial counsel performed deficiently by failing to object to evidence about the teardrop tattoo under Neb. Rev. Stat. § 27-403 and failing to request a limiting instruction. This violated Appellant’s right to effective assistance of counsel and a fair trial under the state and federal constitutions; 5) The court erred by overruling Appellant’s hearsay objections for numerous statements made to law enforcement that were admitted for “investigatory purposes.” This violated Appellant’s right to due process and a fair trial under the equesting a limiting instruction that evidence received “for investigative purposes” was admitted for a limited purposes only and should not be considered for the truth of the matter asserted or for Appellant’s propensity to commit the alleged crime. This violated Appellant’s right to effective assistance of counsel and a fair trial under the state and federal constitutions; 7) The court erred by failing to meaningfully inquire of Juror No. 8 when she requested access to therapy after viewing autopsy photos. This violated Appellant’s right to due process, a fair trial, and an impartial jury under the state and federal constitutions; 8) Trial counsel performed deficiently by failing to object under State v. Welch, 241 Neb. 699 (1992), when the State elicited testimony about Appellant’s credibility, and the lack of credibility of other favorable witnesses. This violated Appellant’s right to effective assistance of counsel and a fair trial under the state and federal constitutions; 9) Trial counsel performed deficiently by failing to object to the State’s improper bolstering of each lay witness. This violated Appellant’s right to effective assistance of counsel and a fair trial under the state and federal constitutions; 10) Trial counsel performed deficiently by failing to review discovery with Appellant so that Appellant could make an informed decision about the plea offer, whether to testify, and assist with trial strategy decisions. This violated Appellant’s right to effective assistance of counsel and a fair trial under the state and federal constitutions; 11) Trial counsel performed deficiently in failing to effectively impeach and cross-examine witnesses. This violated Appellant’s right to effective assistance of counsel and a fair trial under the state and federal constitutions; 12) Trial counsel performed deficiently by failing to adequately advise Appellant whether he should testify. This violated Appellant’s right to effective assistance of counsel and a fair trial under the state and federal constitutions; 13) Trial counsel performed deficiently by failing to adequately discuss plea negotiations and potential trial outcomes with Appellant. This violated Appellant’s right to effective assistance of counsel and a fair trial under the state and federal constitutions; 14) Trial counsel performed deficiently by failing to request an analysis from retained psychologist, Dr. Matt Huss, as to the mitigation factors provided by Miller v. Alabama, 567 U.S. 460 (2012) and Neb. Rev. Stat. § 28-105.02 (supp. 2013). This violated Appellant’s right to effective assistance of counsel, his right to avoid cruel and unusual punishments and his right to a fair trial under the state and federal constitutions; and 15) The court erred by failing to consider the mitigating factors outlined in Neb. Rev. Stat. § 28-105.02 including the results of the comprehensive mental health evaluation conducted under 28-105.02(2)(f) when sentencing Appellant. This violated his right to avoid cruel and unusual punishments and his right to due process under the state and federal constitutions.