State v. Robertson

Full title: STATE OF NEBRASKA, APPELLEE, v. KEENON A. ROBERTSON, APPELLANT.

Court: NEBRASKA COURT OF APPEALS

Date published: Feb 19, 2013

No. A-12-204 (Neb. Ct. App. Feb. 19, 2013)

Opinion

No. A-12-204

02-19-2013

STATE OF NEBRASKA, APPELLEE, v. KEENON A. ROBERTSON, APPELLANT.

Joseph Kuehl for appellant. Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

RIEDMANN

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.

Joseph Kuehl for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

IRWIN, PIRTLE, and RIEDMANN, Judges.

RIEDMANN, Judge.

I. INTRODUCTION

Keenon A. Robertson appeals his convictions and sentences. He challenges the trial court's decision to grant the State's motion to continue for good cause under Nebraska's speedy trial statutes. He also argues that he must be granted a new trial because the trial court failed to instruct the jury on defense of others or seek his consent before allowing the jury to separate without sequestration. Finally, he asserts that he received an excessive total sentence and ineffective assistance of counsel. We find no merit to these claims, and we affirm the judgment of the trial court.

II. BACKGROUND

On April 2, 2010, Robertson was sitting in his car talking with his neighbor in her driveway when shots were fired into the back of his car. The bullets shattered the back window, and a bullet lodged into the tire of the car.

On Easter Sunday, April 4, 2010, Buomkuoth Tang was driving a white Mazda in Omaha, Nebraska, on Ida Street, headed toward 37th Street. Larry Brye, Terrance Pinneke, and Dontevous Loyd were passengers in the vehicle. Tang could not turn onto 37th Street because another car blocked the intersection. A man in a red shirt opened fire on Tang, Brye, Pinneke, and Loyd. Tang attempted to reverse the Mazda down the street, but crashed into a tree. All four men sustained various injuries. Tang was hospitalized for 40 days. Eyewitnesses to the shooting identified Robertson as a suspect.

On May 19, 2010, the State charged Robertson with four counts of attempted second degree murder and four counts of use of a deadly weapon to commit a felony.

1. STATE'S MOTION TO CONTINUE TRIAL

At a pretrial conference in December 2010, the court noted concerns about the age of the case under Nebraska's speedy trial statutes and scheduled a trial date 11 days later. At a hearing on the State's motion to continue, the State argued that it had good cause for a continuance under Neb. Rev. Stat. § 29-1207(4)(f) (Cum. Supp. 2012), because of the exceptional nature of the case and the fact that the assigned prosecutor had been on maternity leave since late October.

Robertson objected to the continuance, arguing that delaying trial violated his right to a speedy trial. The trial court found good cause and exceptional circumstances to continue the trial because of the seriousness of the charges and the prosecutor's situation. The trial court set the trial date for April 2011.

On April 6, 2011, the State filed a final amended information charging Robertson with one count of discharging a firearm at an occupied house, occupied building, or occupied motor vehicle and one count of use of a deadly weapon to commit a felony. Robertson filed a motion to discharge the matter because it violated his right to a speedy trial. The trial court overruled the motion, and the trial proceeded. Robertson did not appeal the trial court's ruling on the motion to discharge.

2. TRIAL TESTIMONY

At trial, the State presented testimony from a number of police officers. According to this testimony, police officers responded to two separate, but geographically close, crime locations. The initial call was for shots fired in the area of 36th and Ida Streets; the second call was for a shooting victim in the area of 6900 North Ridge Drive.

According to the testimony, in the area of 6900 North Ridge Drive, an officer observed several people standing in the front yard attending to a shooting victim who had a gaping wound in his right stomach area. Pinneke was aiding Tang, the victim. The west side of North Ridge Drive was searched, but no firearms or shell casings were located in that area.

The officer observed a white Mazda that was "impaled into a tree." The Mazda was mostly damaged in the rear, as if it had run into the tree backward. The vehicle had about seven bullet holes in it, and the windshield was smashed. West of the Mazda, another officer encountered another shooting victim, Loyd, who was being tended to by Brye. Loyd described what had happened and stated that he could identify the shooter.

The lead crime scene investigator testified that 19 shell casings were found along both 37th and Ida Streets. He also testified that the way the glass was broken on the Mazda's windshield was consistent with someone firing a shot at the windshield, rather than someone firing a shot from inside the vehicle.

Eyewitnesses reported that the shooting suspect had been wearing a red shirt and was last seen heading toward the area of a middle school. An officer located a red shirt directly north of the school. Another officer located a firearm just south of 37th and Ida Streets.

A detective received a report from a witness that someone in the Mazda had also opened fire. He testified that the police department searched for a second weapon, but was unable to locate one.

Laboratory technicians testified that only one weapon was located, a Chinese-manufactured SKS 7.62-mm x 39-caliber semiautomatic rifle that holds 30 rounds of ammunition and requires the shooter to pull the trigger between each shot. Eight bullet holes were identified in the Mazda, which holes indicated that the bullets were fired into the Mazda from the outside.

Several residents of the neighborhood testified; one specifically identified Robertson as the assailant and further testified that he saw Robertson shooting a weapon and running toward the Mazda. Other witnesses testified that a man in a red shirt was shooting at the Mazda. The testimony was conflicting as to whether anyone from the Mazda fired back. There was also conflicting evidence whether shots from more than one firearm could be heard.

Robertson's next-door neighbor, Latia Blair, testified that on April 4, 2010, everyone was outside having cookouts for Easter, including children and grandparents. According to Blair, "At least [Robertson's] mom, everybody that lived there. Friends, family. So about 10, 15 people [were at Robertson's house]." The occupants of the Mazda testified generally that they had been "hanging out" together on April 4 at Loyd's house around Redman Street. They then went to a fast-food restaurant. While heading back to Loyd's house, they ended up on Ida Street. Loyd testified that Tang liked to "mess with people" in that area. Loyd further testified that he told Tang not to turn onto that street, but Tang did anyway. Loyd denied there were any weapons in the Mazda. At the intersection of 37th and Ida Streets, a car blocked their path and then they heard gunshots. Tang put the Mazda in reverse and began driving down the street until he ran into a tree. Pinneke was struck by a bullet in the hip, and Tang was struck in the abdomen. Tang was hospitalized for 40 days.

Tang's testimony was consistent with the above except he claimed that they were on their way to play basketball and that is why they ended up on 37th and Ida Streets.

Blair, along with several other neighbors, also corroborated an earlier driveby shooting that occurred on April 2, 2010. Blair testified that she was parked in front of her house talking to Robertson, who was sitting in his car in her driveway, when shots were fired toward his car. She said the shots hit the rear of Robertson's car. She was unable to identify the assailant. After the shots were fired, Robertson backed out of her driveway and told her to go inside. Although the police received calls to the 911 emergency dispatch service at the time of that incident, no one connected it to Robertson's investigation until Robertson's mother informed the police of the incident after they had been investigating for over a month. Following this report, police processed Robertson's car and found a bullet hole.

Robertson testified that the individuals involved in the driveby shooting on April 2, 2010, were the same people who came back on April 4. He said he knew it was Tang who had been shooting at him on April 2 after seeing him in court. Robertson testified that following the April 2 shooting, he became concerned about his safety as well as the safety of his family, so he obtained an assault rifle, which he hid on the side of his house.

Two days later, on Easter 2010, Robertson noticed the individuals who were involved in the previous driveby shooting when they pulled up onto the street real slow. Robertson then saw the "African guy" in the Mazda pull out a gun. He said that he saw three shots fired and that he then ran and grabbed his weapon and began firing. He testified that at the time he was shooting, he was afraid, fearing for his own life and his family. At the time, his mother, aunt, grandmother, grandfather, 3-year-old daughter, sister, sister's children, and cousins were at his mother's home. After he finished firing, he did not continue chasing the victims, but instead, he ran away. He did not talk to the police because he did not want to go back to the scene of the crime for fear that more people were out looking for him.

3. JURY INSTRUCTIONS

At the close of evidence, the trial court determined that it would instruct the jury on self-defense, but not on defense of others. Robertson's counsel objected to the court's exclusion of the defense of others instruction, arguing that both Robertson and Blair testified that many people were around, including children. Blair testified that children were outside in Robertson's yard, and Robertson testified that his family and children were present. Counsel argued that Robertson testified that shots were fired in his general direction, which was the same direction where others were present. He argued that the circumstances on April 4, 2010, combined with the shooting on April 2, warranted Robertson's belief that deadly force was imminent to himself and his family. The trial judge rejected counsel's arguments and refused to instruct on defense of others.

4. JURY CONDUCT

During deliberations, the jury foreman sent a note to the judge asking what to do if a juror visited the scene of the crime. The juror appeared before the trial court judge and admitted his actions. The juror stated that he visited the scene both at 6 p.m. and after dark in order to better understand the undulation of the area. According to the juror, he had been mistaken as to where the shooter had been standing, but understood it a little bit better after visiting the scene. He denied relaying the circumstances of his visit to other jurors; rather, he explained that his visit came up when he told the rest of the jury that he knew a particular hill was steep because he had driven out and visited it. The rest of the jury interrupted him and told him not to tell them anything else. He also admitted that he later realized that the steepness of the hill did not have anything to do with the claims at issue.

The trial court judge dismissed the juror and informed the jury that he was excusing the juror who visited the scene of the crime. He told them that the previously dismissed alternate juror had rejoined the jury. The alternate juror said that he had been able to follow the judge's instructions and had not discussed the case with anyone. The trial court judge instructed the jury to start its deliberations over to give the alternate juror a chance to fully participate. The case was then resubmitted to the jury.

Robertson's counsel made a record that he had discussed the issues relating to the jury with Robertson. Robertson's counsel said he told Robertson that they could ask for a mistrial but that they instead decided to continue with the current jury. Robertson's counsel said that Robertson consented. The jury ultimately found Robertson guilty of discharging a firearm at an inhabited house, building, or vehicle and of use of a deadly weapon to commit a felony.

5. MOTION FOR NEW TRIAL

Robertson filed a motion for a new trial, arguing that irregularities in the proceedings prevented him from having a fair trial for the following reasons: (1) The trial court improperly excused and recalled the alternate juror, (2) at least one juror committed misconduct, (3) the evidence did not sustain the verdicts, and (4) he did not consent to allowing jury separation without sequestration. He argued that under Nebraska law this entitled him to a presumption of prejudicial jury misconduct. The State asked the court to allow it to present evidence to overcome the presumption of prejudice.

The court denied Robertson's first three grounds for a new trial and scheduled a hearing on the fourth ground. At a hearing on the issue of jury separation, 10 of the 12 jurors testified, at which time Robertson's counsel had an opportunity to cross-examine them. The jurors stated that they abided by the judge's instructions and did not discuss the case with anyone else or view any outside media information. The parties stipulated that they had both interviewed the two absent jurors and that those jurors would have given the same testimony as the others had they been present.

Robertson's stepsister testified at that hearing that during a bathroom break, a juror asked her about the nature of the dispute between Robertson and the victims. She testified that she told the juror she did not know because she was not present at the time. The juror admitted having some contact in the bathroom with Robertson's stepsister, but said the conversation was just a cordial "hello" and did not have any substance.

The court found the State met its burden of proof beyond a reasonable doubt that Robertson was not prejudiced as a result of the jury's separation without sequestration and denied the motion for new trial.

6. SENTENCING

The judge sentenced Robertson to a total of 25 to 60 years in the Nebraska Department of Correctional Services. This timely appeal followed.

III. ASSIGNMENTS OF ERROR

Robertson argues, restated, that the trial court erred in (1) sustaining the State's motion to continue the trial, (2) refusing to give a defense of others instruction to the jury, (3) failing to find that trial counsel was ineffective for failing to move for a mistrial upon discovering juror misconduct, (4) finding that the State met its burden in showing there was no prejudice to Robertson after allowing the jury to separate without sequestration, and (5) imposing an excessive total sentence. Robertson argues that the culmination of errors warrants a new trial.

IV. ANALYSIS

1. MOTION TO CONTINUE

In form, Robertson challenges the trial court's decision to grant the State's motion to continue, but the substance of his complaint addresses the arguments made in his motion to discharge under the speedy trial statutes. We are therefore required to treat Robertson's assignment of error as a challenge to his motion to discharge. A motion to discharge is a final, appealable order requiring appeal within 30 calendar days. Since Robertson did not appeal from the denial of his motion to discharge within 30 days, his appeal is not timely.

An appellate court reviews a trial court's factual finding on whether a charge should be dismissed for a violation of a defendant's statutory right to a speedy trial for clear error. See, State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997); State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004). "Every person indicted or informed against for any offense shall be brought to trial within six months . . . ." § 29-1207(1). The speedy trial clock runs from the date the information is filed and excludes enumerated time periods. See § 29-1207. The statute excludes a delay requested by the prosecution if the "continuance is granted to allow the prosecuting attorney additional time to prepare the state's case and additional time is justified because of the exceptional circumstances of the case," § 29-1207(4)(c)(ii), or if the court finds the period of delay is for "good cause," § 29-1207(4)(f). A defendant may seek redress for a violation of his statutory right to a speedy trial by filing a motion to discharge.

A ruling on a motion to discharge is a final, appealable order. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009); State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996). An appellate court does not have jurisdiction of an appeal unless the appellant files a notice of appeal and pays the docket fee within 30 days of the final order. Neb. Rev. Stat. § 25-1912 (Reissue 2008); State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).

Robertson filed a motion to discharge based on a violation of his § 29-1207 right to a speedy trial on April 11, 2011. The trial court judge denied the motion to discharge and proceeded to trial on that date. Robertson did not appeal the denial of his motion to discharge or argue that his statutory right to a speedy trial had been violated until he addressed it in this appeal. Robertson may not avoid the jurisdictional requirements of § 25-1912 by artfully framing his complaint as a challenge to the State's motion to continue instead of the trial court's ruling on the motion to discharge. Robertson filed his notice of this appeal on March 8, 2012, more than 30 days after the trial court denied his motion to discharge. Since Robertson did not appeal from the denial of his motion to discharge within 30 days, his appeal is untimely and we lack jurisdiction to address the assigned error.

2. JURY INSTRUCTION ON DEFENSE OF OTHERS

Robertson next argues that he should be granted a new trial because the trial court failed to instruct the jury on defense of others. In order to receive a new trial, a defendant must prove that he was entitled to have the jury instructed on his proposed defense and that he was prejudiced by the trial court's failure to give that instruction. Because we find that Robertson was not prejudiced by the trial court's failure to give the proposed instruction, we decline to award Robertson a new trial.

The correctness of a jury instruction is a matter of law that an appellate court reviews independently of the lower court's conclusion. State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).

(a) Failure to Include Proposed

Jury Instruction in Record

We note that although Robertson assigns as error and argues the trial court's failure to instruct on defense of others, Robertson's proposed jury instruction is not included in the record, although it is recited in his brief and discussed in the bill of exceptions. As we stated in Aflague v. Luger, 8 Neb. App. 150, 155, 589 N.W.2d 177, 181 (1999):

It is the duty of the appellant to direct the clerk to include in the transcript any tendered instruction refused by the trial court if the appellant intends to assign error to such refusal. Lange v. Crouse Cartage Co., 253 Neb. 718, 572 N.W.2d 351 (1998). As we have previously mentioned, [the plaintiff's] proposed jury instruction is not in our record on appeal, but she recites the proposed instruction in her brief. A party's brief may not expand the evidentiary record, R-D Investment Co. v. Board of Equal. of Sarpy Cty. , 247 Neb. 162, 525 N.W.2d 221 (1995), nor may it expand this court's transcript. Nonetheless, it is the duty of the trial judge to instruct the jury on the issues presented by the pleadings and the evidence, whether requested to do so or not, and a failure to instruct on the proper law of the case constitutes prejudicial error. Wheeler v. Bagley, 254 Neb. 232, 575 N.W.2d 616 (1998). Therefore, despite not having [the plaintiff's] proposed instruction, we still examine whether the jury was properly instructed on [the plaintiff's] preexisting condition.

Therefore, despite the absence of the tendered instruction, we will address the assigned error.

(b) Trial Court's Failure to Give

Proposed Jury Instruction

To establish reversible error from a court's refusal to give a requested instruction, an appellate court must make three findings. The court must find that (1) the tendered instruction is a correct statement of law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009). We find that the evidence in this case warranted a jury instruction on the defense of others, but that the absence of this instruction was not prejudicial.

(i) Correct Statement of Law

Robertson argues that the trial court's self-defense instruction was insufficient to cover the issues presented at trial and that the trial court was required to instruct the jury on the defense of others. Neb. Rev. Stat. § 28-1409 (Reissue 2008) authorizes an individual to use force to protect himself in certain instances. Neb. Rev. Stat. § 28-1410(1) (Reissue 2008) similarly authorizes an individual to use force against a person to protect a third person in instances where:

(a) The actor would be justified under section 28-1409 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect;
(b) Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(c) The actor believes that his intervention is necessary for the protection of such other person.

The exact tendered instruction is not a part of this record, but neither the parties nor the judge disputed the correctness of the statement of law. We therefore examine whether the evidence warranted an instruction on defense of others.

(ii) Evidence Warranting Instruction

Robertson argues that evidence adduced at trial warranted a jury instruction on the defense of others. Robertson asserts that under the circumstances as they existed at the time, he reasonably believed that the force he used was immediately necessary to protect others. The trial court refused the instruction, finding that while there was evidence of other people in the general vicinity, there was no evidence that they were in the line of fire. The court also noted that there was no evidence of the age and sex of the children allegedly sought to be protected. We disagree.

An instruction regarding a defendant's theory of defense is warranted by the evidence "if there is any evidence to support it." State v. Graham, 234 Neb. 275, 279, 450 N.W.2d 673, 676 (1990) (emphasis in original). In this case, Robertson presented evidence that supported his theory of defense. Two witnesses testified to the presence of others in the vicinity of Robertson. One witness stated that he saw the individuals in the Mazda fire in the direction of Robertson, and multiple witnesses stated that they heard shots from different types of guns. Robertson presented evidence that he believed the victims were targeting him and his family. He stated that he was motivated to discharge a firearm in order to protect others. This evidence supports Robertson's theory of defense because it supports his theory that he fired back at the occupants of the Mazda in order to protect the individuals in the line of fire. Under the standard articulated in Graham, this evidence warranted the tendered instruction of defense of others.

(iii) Prejudice

Robertson argues that because his entire claimed defense was self-defense and defense of others, he was prejudiced by the court's failure to instruct on defense of others. He does not, however, identify how he was prejudiced. Because Robertson has not shown that the additional instruction would have affected the jury's fact finding, he has not met his burden of proving that the omission of the instruction was prejudicial.

In an appeal based on a claim of erroneous jury instructions, the appellant has the burden to show that the questioned instructions were prejudicial or otherwise adversely affected one of his substantial rights. State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005). A defendant is not prejudiced when a jury's factual findings negate the consequence of an error. State v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990). Accordingly, a defendant is not prejudiced by a trial court's failure to instruct the jury on a use of lawful force defense when the jury's findings also negate a finding that the defendant was entitled to use force. See id.

In State v. Brown, supra, the defendant was charged with first degree sexual assault, first degree assault, and false imprisonment for allegedly taking the victim to his apartment and forcing her to have sex with him against her will. The defendant claimed that the events were consensual and that the victim was free to leave. As to the assault charge, the defendant claimed that the victim struck him first and that he was merely defending himself. The jury convicted him on all three charges.

The defendant argued on appeal that the trial court erred in failing to give a self-defense instruction. The Nebraska Supreme Court held that the defendant was entitled to have the jury instructed on his theory of self-defense. However, the court found there was no prejudice because the jury found the defendant guilty of false imprisonment. Implicit in that conviction was a finding that the defendant restrained or abducted the victim; therefore, any force used by the victim to escape was lawful force and self-defense applies only to defending against unlawful force. The Nebraska Supreme Court therefore held that although the court erred in not giving the requested instruction, the failure to do so was "not prejudicial where the jury's factual findings negate the consequence of such error." State v. Brown, 235 Neb. at 384, 455 N.W.2d at 553.

In the present action, Robertson claimed that he and his family were in the same general area when the occupants of the Mazda opened fire. According to Robertson, he feared for both himself and his family, so he returned fire. The trial judge instructed the jury on self-defense. Jury instruction No. 4 stated:

The Defendant acted in self-defense if:
(1) That Defendant reasonably believed that he was immediately threatened with death or serious bodily harm by the use of deadly force by an occupant of a white Mazda on Ida Street; and
(2) The Defendant did not provoke any such use of force against him with the intent of using deadly force in response; and
(3) Under the circumstances as they existed at the time, the Defendant reasonably believed that his use of deadly force was immediately necessary to protect him against death, or serious bodily harm, compelled by force or threat of force; and
(4) Before using deadly force the Defendant either tried to get away or did not try because he reasonably did not believe he could do so in complete safety.
The fact that the Defendant may have been wrong in estimating the danger does not matter so long as there was a reasonable basis for what he believed and he acted reasonably in response to that belief.

Robertson claims the judge should have instructed the jury on defense of others. He did not include the proposed instruction, but NJI2d Crim. 7.4 is the pattern jury instruction entitled "Defense of Another." When a defendant uses deadly force, Nebraska uses the same pattern jury instructions for both self-defense and defense of others and simply substitutes in the appropriate language to reflect whether the defendant was acting to defend himself or another.

Given that the elements of the two defenses are fundamentally identical and that the jury's factual findings effectively rejected Robertson's claim of self-defense, we conclude that the jury's factual findings negate the consequence of the trial court's failure to instruct the jury on defense of others. Having reached this conclusion, we find Robertson did not meet his burden of proving prejudice. See, e.g., Commonwealth v. Green, 55 Mass. App. 376, 770 N.E.2d 995 (2002).

In Green, the defendant, Willie Green, was convicted of voluntary manslaughter. The evidence revealed that as Green and his friend, Michael Burton, exited an apartment building, the victim opened fire. At the time, Burton was in front of Green. Green returned fire, and Burton ran back inside the building, pulling Green back inside with him. The victim died as a result of Green's gunfire.

At trial, the judge instructed on self-defense, but refused a defense of others instruction. The appellate court held that it was error to refuse the instruction, but determined that the decision did not prejudice Green. In reaching this decision, the court noted that the jury convicted Green of voluntary manslaughter, despite his claim of self-defense. The court reasoned as follows:

The actions which [Green] undertook, arguably in his own defense, are the same actions that support his contention that he was acting in defense of another. As the jury failed to view [Green's] actions as justifiable for his own defense, there is no basis to conclude that the jury would have considered those same actions justified when undertaken for the defense of another in the same circumstances. . . . There was no prejudicial error warranting reversal.

Id. at 381, 770 N.W.2d at 1000.

We find the same analysis to be true in the present situation. The jury's rejection of Robertson's claim of self-defense negates the conclusion that the jury would have accepted his claim of defense of others. Robertson, therefore, has not proved that he was prejudiced by the trial court's failure to give the requested instruction.

We recognize that in some discrete factual scenarios, distinct from the facts of this case before us now, a jury could find a defendant acted in defense of others even if the defendant was not acting in self-defense. In such a situation, though, the harm is directed at a third person and the defendant intervenes in order to protect that person. See, e.g., State v. Washington, 185 Neb. 329, 15 N.W.2d 620 (1970); State v. Cook, 204 W. Va. 591, 515 S.E.2d 127 (1999). Such is not the case with Robertson. The testimony reveals that Robertson and his family were all in Robertson's yard when he saw the Mazda--a shot fired by Robertson at the Mazda would be in defense of himself and his family. We find this situation more similar to that addressed in Commonwealth v. Green, supra, and Hill v. State, 160 S.W.3d 855 (Mo. App. 2005).

In Hill, the plaintiff, Tamir Anthony Hill, brought a postconviction action alleging ineffectiveness of counsel following his conviction of second degree murder. He alleged, inter alia, that his counsel was ineffective for failing to seek reversal based upon the court's failure to instruct on defense of others. The evidence in the criminal trial was that Hill and another party became engaged in a gun battle outside of Hill's car while Hill's friends remained inside the car. The evidence conflicted as to whether the victim retreated and was chased down by Hill, who shot the victim in the back, or whether Hill fired at the victim while Hill remained near the car. Hill claimed self-defense and defense of others. The court instructed the jury on self-defense, but refused the defense of others instruction.

The appellate court determined that a defense of others instruction should have been given because there was some evidence that Hill remained near the occupied car during the shooting, and thus, Hill could have been protecting the occupants of the car. The court found, however, that Hill failed to prove he was prejudiced by the failure to give the instruction. The court explained that the jury could have believed either that Hill was the initial aggressor by pulling his gun first, that the victim was the initial aggressor but retreated before Hill shot him, or that the victim was the initial aggressor and that he shot at Hill by the car and Hill returned gunfire, to protect himself and his friends. The court reasoned that by finding Hill guilty, the jury determined that Hill was the aggressor. The court concluded, therefore, that even if a defense of others instruction had been given, a jury would not have found Hill was justified in the shooting.

Turning back to the case at hand, the jury's finding of guilt rejected Robertson's claim of self-defense and the facts of the State, construed in a light most favorable to the State, negated the consequence of the trial court's failure to instruct the jury on defense of others. For this reason, Robertson did not meet his burden of proof that he was prejudiced by the trial court's failure to instruct on defense of others.

3. INEFFECTIVE ASSISTANCE OF COUNSEL

Robertson argues that his trial counsel was ineffective for failing to move for a mistrial after discovering juror misconduct. The record is insufficient for this court to determine the effectiveness of Robertson's counsel. We do not address the assigned error.

An appellate court may review a claim for ineffective assistance of counsel on direct appeal if the record is sufficient to adequately review the question. State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010).

In order to prevail on a claim for ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that he was prejudiced by such deficiency. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

Although a party may properly raise a claim of ineffective assistance of counsel on a direct appeal in some circumstances, "the fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved." State v. Young, 279 Neb. 602, 607, 780 N.W.2d 28, 34 (2010). Frequently, the record presented on appeal does not disclose the facts necessary to properly analyze ineffective assistance of counsel under the Strickland v. Washington test. State v. Young, supra. Appellate courts have generally reached ineffective assistance of counsel claims on direct appeal only "in those instances where it was clear from the record that such claims were without merit or in the rare case where trial counsel's error was 'so egregious and resulted in such a high level of prejudice [that the error caused] a fundamentally unfair trial'" and could not be outweighed by a trial tactic or strategy. Id. at 607-08, 780 N.W.2d at 34.

In this instance, the record is insufficient to determine whether counsel's assistance was ineffective. The record reveals that the juror misconduct was addressed with the court and that an alternate juror was assigned to the panel. It further reflects a statement by Robertson's counsel that he had discussed the option of moving for a mistrial with Robertson, but that they had decided against it. The record does not reveal, however, the substance of that discussion and whether Robertson was fully advised of this option. Therefore, without an evidentiary hearing, we cannot resolve Robertson's claim of ineffective assistance of counsel on direct appeal.

4. JURY SEPARATION WITHOUT SEQUESTRATION

At Robertson's trial, the jury separated Thursday evening after the case had been submitted to it and over the weekend without sequestration. Robertson moved for a new trial because he had not expressly consented to the jury's separation without sequestration. We find that Robertson did not need to consent to the jury's separation without sequestration in this case.

A motion for a new trial is addressed to the discretion of the trial court, and an appellate court reviews the trial court's decision for an abuse of discretion. State v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2011).

On July 22, 2011, the Nebraska Supreme Court decided State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). In Collins, the Nebraska Supreme Court overruled State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980), and established a rule requiring a defendant to object to a sequestration of the jury without separation. The Nebraska Supreme Court applied the new rule prospectively, only. In Collins, the court stated that the rule applicable before July 22, 2011, is that

"[i]n absence of express agreement or consent by the defendant, a failure to comply with § 29-2202 . . . by permitting the jurors to separate after submission of the case is erroneous; creates a rebuttable presumption of prejudice; and places the burden upon the prosecution to show that no injury resulted."

281 Neb. at 954, 799 N.W.2d at 714 (quoting State v. Robbins, supra).

The trial in this case occurred before July 22, 2011, and so we apply the rule elucidated in Robbins requiring the State to rebut the presumption that the jury's separation caused the defendant prejudice. In this case, 10 of the 12 jurors testified at a hearing following the verdict and were subject to cross-examination. The parties stipulated as to the testimony that the remaining two jurors would provide. All of the jurors testified that they were not influenced by outside means from the time they were sent home on Friday evening until they reached their verdict on Monday. The evidence supported a finding that the jurors followed the admonitions of the trial court judge and that their separation without sequestration did not prejudice them. Under these circumstances, we cannot say the trial court abused its discretion in finding that separation of the jury without sequestration did not prejudice Robertson.

5. EXCESSIVE SENTENCE

Robertson argues that his total sentence was excessive. We disagree.

An appellate court reviews a sentence imposed within the statutory limits for an abuse of discretion in applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011); State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009); State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007). When imposing a sentence within the statutory range, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Burton, 282 Neb. 135, 802 N.W.2d 107 (2011); State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).

Robertson does not argue that the total sentence imposed is outside the statutory range. Robertson argues that because he was 20 years old, has a limited criminal record, was motivated to commit the crime in self-defense, and grew up in a violent neighborhood, he should have been sentenced to the "statutory minimum" of "eight (8) years." Brief for appellant at 21. However, he does have a record of prior criminal activity and he committed a particularly violent offense. He fired an assault rifle in a neighborhood and severely wounded his victims. Under these circumstances, we cannot say the trial court abused its discretion in imposing a total sentence of 25 to 60 years.

6. CULMINATION OF ERRORS WARRANTS NEW TRIAL

Robertson argues that the culmination of errors warrants a new trial. Because we do not find prejudicial error, Robertson is not entitled to a new trial.

V. CONCLUSION

Because Robertson did not appeal the denial of his motion to discharge within 30 days, this assignment of error is untimely. The record is insufficient for this court to resolve Robertson's ineffective assistance of counsel claim on direct appeal. We find no merit to Robertson's remaining claims and therefore affirm the judgment of the trial court.

AFFIRMED.