S-12-0410, State v. Daniel Morgan (Appellant)
Scotts Bluff County, Judge Randall L. Lippstreu
Attorneys: David S. MacDonald (Public Defender’s Office) (Appellant) --- Stacy M. Foust (Attorney General’s Office)
Criminal: First degree murder and use of a firearm to commit a felony
Proceedings below: A jury found Appellant guilty of both charges. The district court sentenced Appellant to life in prison for murder and a consecutive sentence of 17 to 34 years for use of a firearm to commit a felony.
Issues: A. The Trial Court erred: 1. By not granting the Defendant's requested jury instructions on the negative element of "sudden quarrel" in the second degree murder instruction. 2. By not granting the Defendant's requested jury instruction of the constitutional right to defend self, family, home and others. 3. Jury instruction number three was confusing and effectively instructed the jury to not consider the lesser included offenses of second degree murder and manslaughter. B. The Appellant was denied effective assistance of trial counsel, as guaranteed to him by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section II of the Nebraska Constitution as follows: l. Trial counsel failed to retain ballistic and accident reconstruction experts that could have provided scientific basis for Morgan's explanation of the events, that is, the firing of certain shots, their place of origin and their sequence in the events and rebuttal to the State's theory of the case that Morgan started shooting before Marquez rammed Morgan's Jeep with his Chevrolet Avalanche. 2. Trial counsel did not object to the jury seeing the Defendant brought to court everyday shackled, contrary to the Court's order for civilian clothes and no shackles. 3. Trial counsel did not object to the Prosecutor referring to the events of the day as "murder" while the Defendant was being cross examined. 4. Trial counsel failed to file a motion in limine to prevent the evidence envelopes numbered 114,115, 119 138,140-147, from being published to the jury with the word "murder" plainly displayed on them, or objecting to the same at trial and being sent back to the jury room during deliberation.