Background
Marcus Settles and Destiny Toussaint were in a relationship that ended in summer 2023. On February 8, 2024, between 11:30 p.m. and midnight, Settles came to Toussaint’s home with a revolver, placed it against her stomach, and threatened to fire it. After others intervened and a struggle ensued, Settles fired shots into the air and fled. Police arrested him at his home. Officers found a revolver on the enclosed front porch with DNA that was consistent with a mixture of two individuals, but Settles was excluded as a contributor.
Settles had a prior felony conviction that prohibited him from possessing firearms. He was charged with terroristic threats, possession of a deadly weapon by a prohibited person, and use of a deadly weapon to commit a felony. The case proceeded to jury trial, where the State presented testimony from Toussaint, law enforcement, forensic technicians, and a DNA analyst. Settles presented no evidence.
The Court’s Holding
The Nebraska Court of Appeals affirmed Settles’ convictions. On the primary issue, the court held that the district court properly responded to a jury question about the definition of possession during deliberations. The jury had asked: “Can you reside or be in a home with a weapon if you are a prohibited person? Is that considered in possession? What is considered possession?” The court instructed that “possession means knowingly having it on one’s person or knowing of the object present and having control over the object.”
The appellate court found this instruction was a correct statement of law, drawn from the Nebraska Pattern Jury Instructions. Because the jury instructions as given did not include a definition of possession, providing the definition in response to the jury’s question was appropriate and not misleading. The court emphasized that the district court did not tell the jury that mere presence was sufficient for possession; rather, it provided the definition so the jury could determine whether the evidence established possession in this particular case.
Regarding Settles’ ineffective assistance of counsel claims, the court found that one claim (prosecutorial misconduct) was insufficiently pled because it failed to identify specific objectionable statements. The other two claims—inadequate investigation of witnesses and failure to present a DNA expert—were preserved for postconviction review because the direct appeal record was insufficient to resolve them.
Key Takeaways
- Trial courts may respond to jury questions during deliberations by providing correct legal definitions when the jury instructions do not contain them.
- Providing a legal definition does not violate a defendant’s rights if the court does not predetermine the factual question for the jury.
- Ineffective assistance claims on direct appeal must specify with particularity which conduct or statements constitute deficient performance.
- Many ineffective assistance claims that cannot be fully resolved on direct appeal are preserved for postconviction review when sufficiently pled.
Why It Matters
This decision provides guidance on the proper procedure for trial courts responding to jury questions during deliberations. Courts may clarify legal terms when jury instructions do not define them, so long as they do not answer the underlying factual question. This balances the jury’s need for legal guidance with the requirement that juries remain the sole arbiters of fact.
The decision also clarifies procedural requirements for raising ineffective assistance of counsel claims on direct appeal. Defendants must allege deficient performance with specificity, naming or describing particular witnesses counsel should have investigated or identifying specific statements constituting prosecutorial misconduct. Claims meeting this threshold but lacking sufficient record development are preserved for postconviction proceedings, where a fuller factual record may be developed to resolve them.