S-25-0013 State of Nebraska (Appellee) v. Daniel S. Nickels (Appellant)
Appeal from the District Court for Douglas County, Judge Horacio J. Wheelock
Attorneys: Natalie M. Andrews (Chandler ׀ Conway, P.C. LLO for Appellant) and Austin N. Relph (Asst. Attorney General for Appellee)
Criminal: Life imprisonment for first-degree murder and use of a deadly weapon (firearm) to commit a felony
Proceedings Below: A jury convicted Appellant of first-degree murder and use of a deadly weapon (firearm) to commit a felony. The district court sentenced him to consecutive terms of life in prison and twenty-five (25) to thirty (30) years in prison. Life imprisonment cases are direct appeals to the Nebraska Supreme Court.
Issues: Appellant assigns the following errors: 1) The trial court erred in including language that Appellant had a duty to retreat in jury instruction No. 13 as Appellant did not have a duty to retreat in his dwelling—a hotel room in which he could not retreat, as Ms. Vargas was blocking the only exit, presenting a reasonably believed imminent harm of the first aggressor; 2) The trial court erred in refusing to allow trial counsel to elicit evidence as to Appellant’s character trait of peacefulness during the prosecution’s case-in-chief, inconsistent with Neb. Rev. Stat. §§ 27-404 and 27-405; 3) Trial counsel provided ineffective assistance of counsel in failing to adduce evidence of specific instances of conduct demonstrating the violent, erratic, and aggressive behavior of the deceased through witnesses Katherin Foley and Dezjarron Jones consistent with Neb. Rev. Stat. § 27-405(2); 4) Trial counsel was ineffective in its failure to object and move for a mistrial based upon the lead detective and county attorney’s characterization of the Appellant’s guilt in directive contravention of the trial court’s order and ethical duty by characterizing the act as “murder” repeatedly in trial in the presence of the jury.