State v. Stelly

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/18/2019 01:10 AM CDT
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Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
STATE v. STELLY
Cite as 304 Neb. 33State of Nebraska, appellee, v.
M alik M. Stelly, appellant.
___ N.W.2d ___
Filed September 13, 2019. No. S-18-025.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
2. Trial: Photographs: Appeal and Error. The admission of photo-
graphs of a gruesome nature rests largely with the discretion of the
trial court, which must determine their relevancy and weigh their pro-
bative value against their prejudicial effect. An appellate court reviews
a trial court’s admission of photographs of a victim’s body for abuse
of discretion.
3. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement. An appellate
court determines as a matter of law whether the record conclusively
shows that (1) a defense counsel’s performance was deficient or (2)
a defendant was or was not prejudiced by a defense counsel’s alleged
deficient performance.
4. Search Warrants. The purpose of the particularly requirement as it
relates to warrants is to prevent general searches, and whether a warrant
is insufficiently particular depends upon the facts and circumstances of
each case.
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Cite as 304 Neb. 335. Search Warrants: Affidavits. An inadvertent defect in a search warrant
may be cured by reference to the affidavit used to obtain the warrant if
the affidavit is incorporated in the warrant or referred to in the warrant
and the affidavit accompanies the warrant.
6. Homicide: Photographs. If the State lays proper foundation, photo-
graphs that illustrate or make clear a controverted issue in a homicide
case are admissible, even if gruesome.
7. ____: ____. In a homicide prosecution, a court may admit into evidence
photographs of a victim for identification, to show the condition of the
body or the nature and extent of wounds and injuries to it, and to estab-
lish malice or intent.
8. Homicide: Photographs: Juries: Proof. Photographs can provide
visual proof from which a jury could reasonably infer that the homicide
was committed with deliberate and premeditated malice.
9. Rules of Evidence: Photographs: Words and Phrases. Neb. Evid. R.
403, Neb. Rev. Stat. § 27-403 (Reissue 2016), does not require the State
to have a separate purpose for every photograph, and it requires a court
to prohibit cumulative evidence only if it substantially outweighs the
probative value of the evidence.
10. Trial: Evidence: Appeal and Error. The decision of the trial court as to
whether the probative value of evidence is substantially outweighed by
the danger of unfair prejudice or the needless presentation of cumulative
evidence will not be disturbed on appeal unless there has been an abuse
of discretion.
11. Effectiveness of Counsel: Proof: Words and Phrases. Generally, to
prevail on a claim of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
the defendant must show that his or her counsel’s performance was
deficient and that this deficient performance actually prejudiced the
defendant’s defense. To show that counsel’s performance was deficient,
a defendant must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law. To show preju-
dice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would
have been different.
12. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record. Otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
13. Effectiveness of Counsel: Appeal and Error. To raise a claim on
direct appeal that trial counsel was ineffective, a defendant’s brief must
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STATE v. STELLY
Cite as 304 Neb. 33specifically set forth how counsel’s performance was deficient, but it
need not also allege prejudice.
14. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to be able to recog-
nize whether the claim was brought before the appellate court.
15. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved on direct appeal. The deter-
mining factor is whether the record is sufficient to adequately review
the question.
16. ____: ____: ____. The record on direct appeal is sufficient to review a
claim of ineffective assistance if it establishes either that trial counsel’s
performance was not deficient, that the appellant will not be able to
establish prejudice, or that trial counsel’s actions could not be justified
as a part of any plausible trial strategy.
17. ____: ____: ____. When reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to conclu-
sively determine whether counsel did or did not provide effective assist­
ance, and whether the defendant was or was not prejudiced by counsel’s
alleged deficient performance.
18. Criminal Law: Jurors: Proof. Generally, a victim’s qualities and per-
sonal attributes are irrelevant to the facts that the State must prove in
a criminal prosecution and have the potential to distort the jurors’ rea-
soned consideration of the evidence by evoking their sympathy for the
victim and corresponding outrage toward the defendant.
19. Effectiveness of Counsel: Prosecuting Attorneys: Presumptions:
Appeal and Error. An appellate court gives defense counsel’s decision
not to object to a prosecutor’s conduct or remark a strong presumption
of reasonableness.
20. Effectiveness of Counsel: Claims. A claim of ineffective assistance that
is insufficiently stated is no different than a claim not stated at all.
21. Postconviction: Effectiveness of Counsel: Claims: Appeal and Error.
When an appellate court finds, on direct appeal, that the record is not
sufficient to resolve a claim of ineffective assistance, it should not be
misunderstood as a finding that the claim will necessarily require an evi-
dentiary hearing if raised in a motion for postconviction relief, because
that determination is governed by an entirely different standard.
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STATE v. STELLY
Cite as 304 Neb. 3322. Postconviction: Effectiveness of Counsel: Records: Claims: Appeal
and Error. Just because an appellate court finds the record on direct
appeal is insufficient to resolve a claim of ineffective assistance, it does
not mean that a postconviction court will necessarily be precluded from
later finding the existing record affirmatively refutes the same claim.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Stacy, J.
In this direct appeal, Malik M. Stelly challenges his con-
victions for first degree murder, use of a deadly weapon to
commit a felony, and possession of a deadly weapon by a pro-
hibited person. Finding no merit to his assignments of error,
we affirm.
I. BACKGROUND
On January 11, 2017, at 2:37 a.m., the “ShotSpotter” system
in Omaha, Nebraska, indicated shots were fired in the area
of 3615 Laurel Avenue. Officers responded to the alert and
arrived on the scene within minutes to find D’Angelo Branch
lying in a pool of blood on a residential sidewalk. Paramedics
determined Branch had no pulse and declared him dead. An
autopsy showed he died of multiple gunshot wounds to the
head; in total, he sustained 16 wounds to the head and five
additional wounds to his lower body.
1. Investigation
Several people who lived near the crime scene reported
hearing multiple gunshots and seeing a silver Chrysler PT
Cruiser driving away from the area. One person described
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Cite as 304 Neb. 33the PT Cruiser as having rust around the wheel wells on the
driver’s side in both the front and the back. Surveillance video
from a nearby residence showed a silver PT Cruiser in the area
during the relevant time.
Officers collected 11 spent casings from a 9-mm firearm
from around Branch’s body. They also recovered two cell
phones from the crime scene: an LG cell phone that was found
in the street about 10 to 15 feet from Branch’s body and a ZTE
cell phone that was found in Branch’s pocket.
Later that day, officers obtained a search warrant and
extracted data from the LG cell phone found in the street.
That data indicated the cell phone belonged to Stelly. After
learning Stelly’s address, officers went to surveil his apartment
complex. They found a silver PT Cruiser in the parking lot at
the complex. The PT Cruiser was registered to Stelly’s friend,
Royce White.
While surveilling the apartment complex, officers saw Stelly
and White leave in a green Cadillac. The Cadillac was reg-
istered to White’s girlfriend. Officers followed the Cadillac
and ultimately conducted a traffic stop. Stelly and White
were transported to the police station and interviewed. After
authorities obtained buccal swabs from each, Stelly and White
were released.
A search warrant was then obtained for Stelly’s apartment
and the PT Cruiser. During the search of the apartment, offi-
cers discovered the keys to the PT Cruiser under some couch
cushions. They also found and seized a hat they believed
Stelly was wearing during the relevant time period based on
time-stamped photographs discovered on Stelly’s social media
profile. The search of the PT Cruiser showed it had damage
to the wheel wells on the driver’s side. Evidence adduced at
trial showed that White had loaned Stelly his silver PT Cruiser
before the shooting because Stelly’s car had been in an acci-
dent. Stelly’s fingerprint was recovered from the interior door-
frame of White’s PT Cruiser.
The LG cell phone found in the street near Branch’s body,
and the hat seized from Stelly’s apartment, were examined
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Cite as 304 Neb. 33by a forensic technician for blood and DNA testing. A few
spots of blood were found on the underside of the hat brim,
and the DNA was compared to known samples from Stelly,
White, and Branch. Branch was not excluded as the major
contributor to the DNA contained in the blood spots, and the
probability of that DNA’s coming from someone other than
Branch was 1 in 47.4 nonillion. Stelly was not excluded as
the major contributor to the DNA collected from the inside
headband of the hat, and the probability of that DNA’s having
come from someone other than Stelly was 1 in 1.01 octillion.
DNA found on the LG cell phone was tested, Stelly was not
excluded as the major contributor, and the probability of that
DNA’s having come from someone other than Stelly was 1 in
4.12 sextillion.
Stelly was arrested and charged with first degree murder,
use of a deadly weapon to commit a felony, and possession of
a deadly weapon by a prohibited person.
2. Motion to Suppress
Before trial, Stelly moved to suppress certain evidence.
As relevant to the issues raised on appeal, he sought to sup-
press evidence obtained from searching the contents of the
LG cell phone found near Branch’s body. The LG cell phone
was searched pursuant to a warrant which Stelly challenged as
insufficient. Specifically, Stelly claimed that the affidavit in
support of the warrant, and the warrant itself, both identified
the electronic device to be searched as the ZTE cell phone
found in Branch’s pocket rather than the LG cell phone that
was actually searched.
At the suppression hearing, the warrant and attached affida-
vit were received into evidence. The affidavit recited in perti-
nent part:
On Wednesday, January 11th, 2016 at 0237 hours
[t]here was a ShotSpotter activation in the area of 3620
Laurel Avenue, Omaha, Douglas County, Nebraska.
Shortly after that a shooting was called in at the same
location.
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Cite as 304 Neb. 33When [o]fficers arrived on the scene they located a
male party down . . . . This party was declared deceased
by medic units at the scene. The victim appeared to have
been shot multiple times, including at close range. Several
spent 9mm casings were located near the victim.
....
An LG model LG-LS755; MEID-D:089806163100
409889 cellular telephone was located in the street about
10 feet to the west of where the victim was located.
Another cellular telephone was located in the victim’s
pocket[.]
It is unknown, at this time, who the LG cellular tele-
phone belongs to, a suspect or a victim. Affiant [o]fficers
believe that if [they] were allowed to examine the elec-
tronic data located on this telephone it would be a benefit
to this investigation.
The affidavit also stated that the electronic device to be
searched was in the lawful possession of the Omaha Police
Department and was “found in the street at the scene of a
homicide and seized as evidence.” But elsewhere in the affi-
davit, the device to be searched was identified as the ZTE cell
phone. Likewise, the warrant that was issued identified the
ZTE cell phone as the device to be searched. The warrant was
issued January 11, 2018, after which the LG cell phone found
in the street was searched.
The officer who swore the affidavit testified at the sup-
pression hearing. He noticed, after returning the warrant, that
he had “made an error when listing the cell phone itself in
the search warrant and the affidavit as far as property being
searched.” According to the officer, his narrative descrip-
tion correctly referenced the LG cell phone found in the
street and explained why law enforcement wanted to search
that cell phone, but when identifying the electronic device
to be searched, he mistakenly “listed the cell phone that
was recovered from the victim himself as opposed to the
cell phone that was found in the street.” After noticing the
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STATE v. STELLY
Cite as 304 Neb. 33error, the officer applied for and obtained another search
warrant, this time referencing only the LG cell phone found
in the street.
The district court determined that “[b]ased upon review of
the search warrant and the [a]ffidavit attached thereto, it is
clear that officers were seeking to search the LG phone that
was found lying in the street approximately ten feet from the
victim’s body.” Relying on State v. Kleinberg,1 in which we
held that “an inadvertent defect in a search warrant may be
cured by reference to the affidavit used to obtain the warrant
if the affidavit is incorporated in the warrant or referred to in
the warrant and the affidavit accompanies the warrant,” the
court found the search of the LG cell phone constitutional and
overruled the motion to suppress. Stelly renewed his motion to
suppress at trial, and again it was overruled.
3. Trial
The case was tried to a jury over a period of 9 days in
October 2017. We summarize only the evidence pertinent to
the issues raised on appeal.
(a) Murder Timeline
On January 10, 2017, the day before Branch was killed,
Stelly and White celebrated Stelly’s birthday. Stelly purchased
some new clothes, including the hat later found in his apart-
ment. At approximately 8 p.m., Stelly took several photo-
graphs with his cell phone and posted them on a social media
website. One of these photographs showed Stelly wearing his
recently purchased clothes.
Stelly’s cell phone records indicate that from approximately
8:15 p.m. until just before 11 p.m. on January 10, 2017, his cell
phone was “pinging off” a cell tower at 33d Street and Laurel
Avenue, which was near White’s house and the crime scene.
Around midnight, Stelly’s cell phone pinged off a cell tower
1
State v. Kleinberg, 228 Neb. 128, 131, 421 N.W.2d 450, 453 (1988).
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Cite as 304 Neb. 33at 40th and Grant Streets. And finally, between 1:43 and 1:51
a.m. on January 11, Stelly had a text message conversation
with the mother of his son in which he stated he was “bored”
and “wanna act bad.” The shooting occurred at 2:37 a.m. on
January 11.
(b) Exhibits
During trial, the State offered several photographs depict-
ing Branch’s body at the crime scene and during the autopsy.
Stelly objected to four of the photographs taken at the crime
scene on grounds they were “overly graphic” and “redundant.”
He objected to four of the autopsy photographs on grounds
they were “overly gruesome.” The court overruled Stelly’s
objections and admitted all eight photographs.
At another point during trial, the State identified a string
of 12 exhibits, marked as exhibits 94 through 106. There was
no exhibit 105 included in the string. After the witness was
asked about each of the exhibits, the State offered them. But
while reciting the string of exhibits, the State omitted refer-
ence to exhibit 103. This oversight was apparently not realized
by either the parties or the court. When defense counsel was
asked whether he had any objection to the offer, he replied:
“No objection to 94 through 102. Our objection is to 103 and
104. No objection to 106.” The court then ruled: “[E]xhibits
94 through 102 are received. The objections are noted on 103
and 104, those will be received. And 106 is received.”
(c) Evidence of Victim’s
Personal Attributes
During trial, testimony was adduced that Branch had a
developmental disability and did not drive. Instead, he primar-
ily walked or rode his bicycle for transportation. Several times
during the trial, testimony was introduced by the State regard-
ing Branch’s personal attributes and his general good character.
Defense counsel did not object to this testimony. Some of this
evidence was referenced by the State during closing argument,
again without objection.
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Cite as 304 Neb. 33(d) Verdicts and Sentences
The jury found Stelly guilty on all three counts. The trial
court accepted the verdicts and convicted Stelly of first degree
murder, use of a deadly weapon to commit a felony, and pos-
session of a deadly weapon by a prohibited person. Stelly was
sentenced to a term of life imprisonment on the murder convic-
tion and to consecutive terms of 30 to 40 years’ imprisonment
on the other two convictions. Stelly filed this direct appeal,
represented by new counsel.
II. ASSIGNMENTS OF ERROR
Stelly assigns, reordered and restated, that the trial court
erred in (1) denying his motion to suppress the search of his
cell phone and (2) admitting graphic and duplicative photo-
graphs over trial counsel’s objections. He also asserts 18 dif-
ferent claims of ineffective assistance of trial counsel, and he
argues that the cumulative effect of these alleged deficiencies
deprived him of a fair trial.
III. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.2
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protection is a question of
law that an appellate court reviews independently of the trial
court’s determination.3
[2] The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must deter-
mine their relevancy and weigh their probative value against
their prejudicial effect.4 An appellate court reviews a trial
2
State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018).
3
Id.4
State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
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Cite as 304 Neb. 33court’s admission of photographs of a victim’s body for abuse
of discretion.5
[3] Whether a claim of ineffective assistance of trial coun-
sel can be determined on direct appeal presents a question of
law, which turns upon the sufficiency of the record to address
the claim without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
requirement.6 An appellate court determines as a matter of
law whether the record conclusively shows that (1) a defense
counsel’s performance was deficient or (2) a defendant was
or was not prejudiced by a defense counsel’s alleged deficient
performance.7
IV. ANALYSIS
1. Motion to Suppress
Stelly argues that evidence from the search of the LG cell
phone found near Branch’s body should have been suppressed.
He points to the fact that the first search warrant, and portions
of the supporting affidavit, identified a different cell phone
as the electronic device to be searched. He thus appears to be
arguing that the first warrant was not particular enough in its
description of the item to be searched.
[4] The purpose of the particularly requirement as it relates
to warrants is to prevent general searches, and whether a war-
rant is insufficiently particular depends upon the facts and
circumstances of each case.8 As a general rule, the description
must enable officers to ascertain and identify the items to be
seized with reasonable certainty and little chance of confusion
or uncertainty.9
5
Id.6
State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).
7
Id.8
See, State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993); State v.
Walters, 230 Neb. 539, 432 N.W.2d 528 (1988).
9
See 79 C.J.S. Searches § 243 (2017). See, also, State v. Groves, 239 Neb.
660, 477 N.W.2d 789 (1991).
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Cite as 304 Neb. 33Stelly’s argument in support of this assignment of error
is limited. He contends only that the district court erred in
applying the rationale of Kleinberg 10 to conclude the affidavit
cured any deficiency in the warrant. We limit our analysis
accordingly.
[5] Kleinberg held that “an inadvertent defect in a search
warrant may be cured by reference to the affidavit used to
obtain the warrant if the affidavit is incorporated in the warrant
or referred to in the warrant and the affidavit accompanies the
warrant.”11 In Kleinberg, police officers had been informed the
defendant had marijuana in his vehicle and they applied for a
warrant to search the vehicle. The supporting affidavit sought
to search the vehicle, but the warrant authorized a search of
the defendant’s person. The police served the warrant on the
defendant and then searched his vehicle, but did not search his
person. Marijuana was found in the vehicle, and the defendant
was arrested. The defendant moved to suppress the evidence,
arguing the warrant did not authorize a search of his vehicle.
The trial court overruled the motion to suppress, and we
affirmed. In doing so, we reasoned that the warrant referred to
and was accompanied by the affidavit discussing the search of
the vehicle and that the information in the affidavit could “be
used to cure the defect in the warrant resulting from the error
of the scrivener.”12
Here, as in Kleinberg, the warrant referred to and was
accompanied by an affidavit. And although both the warrant
and the affidavit misidentified the ZTE cell phone as the item
to be searched, a review of the information in the supporting
affidavit demonstrates the reference to the ZTE cell phone was
an inadvertent scrivener’s error, as it is clear the officers were
seeking a warrant to search the LG cell phone found lying
in the street near Branch’s body. The affidavit reads, “The
10
Kleinberg, supra note 1.
11
Id. at 131, 421 N.W.2d at 453.
12
Id. at 134, 421 N.W.2d at 454.
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Cite as 304 Neb. 33telephone was found in the street at the scene of a homicide
and seized as evidence.” Additionally, it states:
An LG model . . . cellular telephone was located in the
street about 10 feet to the west of where the victim was
located. Another cellular telephone was located in the
victim’s pocket[.]
It is unknown, at this time, who the LG cellular tele-
phone belongs to, a suspect or a victim. Affiant [o]fficers
believe that if [they] were allowed to examine the elec-
tronic data located on this telephone it would be a benefit
to this investigation.
We conclude that the detailed information in the supporting
affidavit cured any defect in the warrant resulting from the
scrivener’s error in misidentifying the ZTE cell phone as the
item to be searched. Moreover, reading the information in the
affidavit and the warrant together, the item to be searched was
described with sufficient particularity to allow the executing
officer to ascertain and identify the item to be searched with
reasonable certainty. Stelly’s argument to the contrary is with-
out merit, and the district court did not err in overruling the
motion to suppress.
2. Photographs of Victim
Stelly argues the trial court improperly admitted eight pho-
tographic exhibits over his objections that some were overly
graphic and redundant and that others were overly gruesome.
Although Stelly did not expressly object to any of the photo-
graphs on Neb. Evid. R. 40313 grounds, his objections were
treated as seeking exclusion on grounds the photographs, even
if relevant, were gruesome and cumulative and thus were
more prejudicial than probative. He makes the same argument
on appeal.
In response to Stelly’s objections, the district court exam-
ined the photographs outside the presence of the jury and
asked the State to explain the relevance of each. The court also
13
Neb. Rev. Stat. § 27-403 (Reissue 2016).
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Cite as 304 Neb. 33explored with counsel whether any of the photographs were
duplicative and whether other photographs existed showing
the same areas of Branch’s body after he had been “cleaned
up.” Summarized, the State explained that more than 200 pho-
tographs had been taken and that although some of the 8 being
offered were similar, they were taken from different angles
and distances to depict different areas of Branch’s body at dif-
ferent points during the investigation and to highlight different
things of evidentiary significance. The court overruled Stelly’s
objections and admitted all eight photographs.
“The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must deter-
mine their relevancy and weigh their probative value against
their prejudicial effect.”14 On appeal, the State does not dispute
that the photographs depicting Branch’s body after the shoot-
ing were gruesome, but it points out that this does not render
them inadmissible.
[6,7] We have often observed that gruesome crimes produce
gruesome photographs,15 but if the State lays proper founda-
tion, photographs that illustrate or make clear a controverted
issue in a homicide case are admissible, even if gruesome.16 In
a homicide prosecution, a court may admit into evidence pho-
tographs of a victim for identification, to show the condition of
the body or the nature and extent of wounds and injuries to it,
and to establish malice or intent.17
The photographs taken at the scene of the crime show
Branch’s body as it was discovered, lying on the sidewalk in
a pool of blood. The photographs depict the nature, extent,
and location of the multiple bullet wounds, and illustrate the
spatial relationship of Branch’s body to the spent shell casings
discovered near and under his body. The photographs taken
14
Dubray, supra note 4, 289 Neb. at 218, 854 N.W.2d at 599.
15
Dubray, supra note 4.
16
Id.
17
Id.
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Cite as 304 Neb. 33during the autopsy show portions of Branch’s body not other-
wise visible in the photographs taken at the scene, including a
photograph of a projectile in his left eye.
[8] We have recognized that photographs can also provide
“‘visual proof from which a jury could reasonably infer that
the homicide was committed with “deliberate and premedi-
tated malice.”’”18 Here, in addition to showing the condition
of the body and the nature and extent of the wounds, the
photographs tended to establish malice or intent in that they
showed multiple shots were fired at Branch’s head. We con-
clude that although the photographs were gruesome, their pro-
bative value was not substantially outweighed by the danger of
unfair prejudice.
Stelly also objected that some of the four photographs from
the crime scene were unnecessarily cumulative, in that they
showed some of the same bullet wounds. We pause to note that
his brief on appeal argues that some of the autopsy photographs
should also have been excluded as cumulative, but because he
did not object to the autopsy photographs on that basis at trial,
he has not preserved the issue for appellate review.19 We thus
address only Stelly’s argument that the four photographs of the
crime scene were needlessly cumulative.
In that regard, he argues that some of the same bullet
wounds are visible in more than one crime scene photograph.
While he is correct, that is due in large part to the sheer num-
ber of wounds to Branch’s head and body. Moreover, Stelly’s
argument ignores the different evidentiary significance of the
four photographs. Three of the photographs depict entirely dif-
ferent areas of Branch’s body and clothing, and although there
are two photographs depicting the injuries to the right side of
Branch’s head, one of the photographs was taken from an angle
that shows the proximity of several shell casings not visible in
the other photograph.
18
State v. Ryan, 226 Neb. 59, 87, 409 N.W.2d 579, 596 (1987).
19
State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003) (objections not pre­
sented to and passed upon by trial court will not be considered on appeal).
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Cite as 304 Neb. 33[9,10] Rule 403 does not require the State to have a separate
purpose for every photograph, and it requires a court to pro-
hibit cumulative evidence only if it “‘substantially’” outweighs
the probative value of the evidence.20 The decision of the trial
court as to whether the probative value of evidence is substan-
tially outweighed by the danger of unfair prejudice or the need-
less presentation of cumulative evidence will not be disturbed
on appeal unless there has been an abuse of discretion.21
Here, we find the court admitted the photographs for a
proper purpose and did not abuse its discretion in conclud-
ing that multiple photographs of the same wounds were not
unfairly prejudicial.
3. Ineffective Assistance
of Counsel
[11] Stelly asserts a total of 18 different claims of inef-
fective assistance of trial counsel. Generally, to prevail on a
claim of ineffective assistance of counsel under Strickland v.
Washington,22 the defendant must show that his or her coun-
sel’s performance was deficient and that this deficient perform­
ance actually prejudiced the defendant’s defense.23 To show
that counsel’s performance was deficient, a defendant must
show that counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.24 To show
prejudice, the defendant must demonstrate a reasonable prob-
ability that but for counsel’s deficient performance, the result
of the proceeding would have been different.25
20
Dubray, supra note 4, 289 Neb. at 219, 854 N.W.2d at 600.
21
See State v. Baltimore, 236 Neb. 736, 463 N.W.2d 808 (1990), disapproved
on other grounds, State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83(1991).
22
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
23
State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).
24
Id.25
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Cite as 304 Neb. 33Summarized, Stelly’s brief asserts his trial counsel was inef-
fective in (1) failing to object when the trial court received
exhibit 103, which had never been offered; (2) failing to object
to evidence of and argument concerning Branch’s personal attri-
butes and good qualities; and (3) failing to adequately investi-
gate or present evidence in 16 different instances. We address
each claim in turn, but first we set out the law that governs our
analysis of ineffective assistance claims on direct appeal.
[12,13] It is well settled that when a defendant’s trial coun-
sel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial coun-
sel’s ineffective performance which is known to the defendant
or is apparent from the record. Otherwise, the issue will be
procedurally barred in a subsequent postconviction proceed-
ing.26 In State v. Filholm,27 we explained that to raise a claim
on direct appeal that trial counsel was ineffective, a defendant’s
brief must specifically set forth how counsel’s performance
was deficient. But we clarified that the brief need not also
allege prejudice:
Although our case law makes clear that specific alle-
gations of prejudice are required within the context of
postconviction relief, we view such a requirement on
direct appeal as a waste of time and resources. As we
have noted, the trial record on appeal is devoted to
issues of guilt or innocence, not counsel’s performance.
Thus, to require an appellant to allege prejudice from
ineffective assistance on direct appeal would require him
or her to allege facts in detail that are likely not within
the appellate record or known to the defendant with-
out further inquiry. . . . We therefore see no justifica-
tion for requiring an appellant to allege prejudice when
claiming ineffective assistance of trial counsel on direct
appeal. That said, we emphasize that in the context of
direct appeal, like the requirement in postconviction
26
Id.27
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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Cite as 304 Neb. 33proceedings, mere conclusions of fact or law are not
sufficient.28
[14] An ineffective assistance of counsel claim is raised on
direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the
trial record and (2) a district court later reviewing a petition
for postconviction relief to be able to recognize whether the
claim was brought before the appellate court.29
[15-17] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that
it can be resolved on direct appeal.30 The determining factor
is whether the record is sufficient to adequately review the
question.31 We have said the record is sufficient if it establishes
either that trial counsel’s performance was not deficient, that
the appellant will not be able to establish prejudice, or that
trial counsel’s actions could not be justified as a part of any
plausible trial strategy.32 We have also said that when review-
ing claims of ineffective assistance of counsel on direct appeal,
an appellate court decides only whether the undisputed facts
contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assist­
ance, and whether the defendant was or was not prejudiced by
counsel’s alleged deficient performance.33
With this framework in mind, we consider Stelly’s various
claims that his trial counsel performed deficiently.
(a) Exhibit 103
During trial, exhibit 103 was received into evidence over
Stelly’s objection, despite the fact that the State failed to
28
Id. at 770-71, 848 N.W.2d at 578-79.
29
State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
30
Id.; Munoz, supra note 23.
31
Id.32
Munoz, supra note 23.
33
See State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019).
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Cite as 304 Neb. 33formally offer exhibit 103 into evidence. The exchange at trial
occurred as follows:
[The State]: Judge, we’re going to offer Exhibits 94
through 100 and then 101, 102, 104 and 106.
[Defense counsel]: No objection to 94 through 102.
Our objection is to 103 and 104. No objection to 106.
THE COURT: 94 through 102 are received. The objec-
tions are noted on 103 and 104, those will be received.
And 106 is received.
Stelly argues that although his trial counsel objected to exhibit
103, his trial counsel performed deficiently by failing to also
object to the court’s receipt of exhibit 103 on the ground that
the State had never offered it. Both Stelly and the State agree
that the record is sufficient on appeal to address this claim, and
we agree. We therefore turn to the merits.
The State argues that trial counsel was not deficient in fail-
ing to object to the court’s receipt of exhibit 103 because trial
counsel was aware, based on prior discussions outside the
presence of the jury, that the State’s failure to formally offer
exhibit 103 was inadvertent and easily cured. This is supported
by the record.
Prior to the formal offer of the string of exhibits identified
in the above exchange, counsel for both parties informed the
court, outside the presence of the jury, that defense counsel
intended to object to exhibits 103 and 104 as cumulative and
unfairly prejudicial. After some discussion, the court informed
counsel at sidebar that it would “allow 103 and 104 since they
are different.”
The formal offer of exhibits occurred after this sidebar.
The record shows that defense counsel was aware the State
intended to offer exhibit 103 and was further aware the court
intended to receive the exhibit over trial counsel’s objection.
Under such circumstances, if trial counsel had objected to
the court’s receipt of exhibit 103 despite the State’s failure to
offer it, the State would have easily corrected the oversight. In
other words, with or without the objection that Stelly claims
his counsel should have made, the exhibit would have been
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Cite as 304 Neb. 33received. Stelly can show no prejudice, and his first claim of
ineffective assistance of trial counsel has no merit.
(b) Evidence of Personal
Attributes of Victim
Stelly claims his trial counsel performed deficiently by fail-
ing to object to testimony and argument regarding Branch’s
general good character and his diminished mental capacity.
Both Stelly and the State contend the record is sufficient on
appeal to resolve this claim of ineffective assistance of counsel.
We agree.
At trial, two of the State’s witnesses—Branch’s brother and
Branch’s girlfriend—testified about Branch’s personal attri-
butes. The following testimony was adduced without objection
from Branch’s brother:
[Branch] was very helpful to just about everybody he
came in contact with. You know, friends, family. I mean,
you couldn’t really ask for a better person than [Branch]
because — he was mentally challenged. He had — he was
born with water on his brain, but he was still just a lov-
able person, you know. We looked at him as one of God’s
angels because he wasn’t supposed to make it a year after
his birth. He was supposed to die. He made it all the way
to 29.
Branch’s brother also testified that Branch “had the mind of a
kid instead of an adult. So he was 29, he was probably 14 in
— in his head he was 14. He was still a kid.” He explained that
Branch attended special education classes while in school.
Branch’s girlfriend also testified to Branch’s personal attri-
butes without objection. She stated that Branch “got along very
well with everybody. He was very helpful, very kind, espe-
cially very kind to me.” She described him as very loving and
caring, but with an IQ that was lower than that of the average
person.
During closing arguments, the prosecutor summarized the
testimony of Branch’s brother and girlfriend, without objection
from trial counsel:
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Cite as 304 Neb. 33You also heard from . . . Branch’s brother . . . .
He described [Branch] as, quote, one of God’s angels.
He related to you that [Branch] shouldn’t have made it
past one year of age because he was born with water on
the brain. As a result of that condition, he forever — or at
the point of his death, had the mentality of a 14-year-old.
He told you that [Branch] went to North High School and
graduated, but he required special education during his
time there.
He described [Branch] as helping everyone and would
not drive, but he said he would walk around town, walk-
ing as he was on the early morning hours of January 11th,
2017, when he was trying to walk home from [Branch’s
girlfriend’s] house to his family’s house. He didn’t have a
car. He relied on walking.
....
. . . [Branch’s girlfriend] told you that [Branch] was
very kind. He wasn’t of the highest IQ, in her opinion, but
they were able to communicate. He treated her well, and
she was dating him. . . .
....
. . . It’s time to hold [Stelly] accountable. He murdered
. . . Branch, who is a stable man simply trying to get
home at the end of the night. He was gunned down in the
street. His body was left there, and [Stelly] fled because
[Stelly] is the one who perpetrated it. He needs to be held
accountable.
[18] Generally, a victim’s qualities and personal attributes
are irrelevant to the facts that the State must prove in a crimi-
nal prosecution and have the potential to distort the jurors’
reasoned consideration of the evidence by evoking their sym-
pathy for the victim and corresponding outrage toward the
defendant.34 But here, it cannot be said that all the evidence
of Branch’s personal attributes was irrelevant. Evidence that
he did not drive due to his diminished mental capacity tends
34
Dubray, supra note 4.
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Cite as 304 Neb. 33to explain why he was out walking at the time he was shot,
and it was relevant for that purpose. But the related testimony
and argument that Branch was kindhearted and had overcome
obstacles in his life were relevant neither to the facts the State
had to prove nor to any defense raised by Stelly.
[19] That said, an appellate court gives defense counsel’s
decision not to object to a prosecutor’s conduct or remark a
strong presumption of reasonableness.35 Counsel may have
made a sound tactical decision in not objecting, and “‘[i]t is
not beyond comprehension to envision an instance where a
surely winnable objection may still hurt the defense in the eyes
of the jury.’”36
In this case, defense counsel agreed during his closing
argument that this was “a horrible crime” and remarked: “It’s
senseless. His poor family.” These remarks suggest counsel
may have made a tactical decision not to object to evidence
of Branch’s personal attributes because, even if the objec-
tions were winnable, he decided it was better for the jury to
see Stelly as sympathetic to the loss of an innocent life, while
denying that he was the perpetrator.
Even if counsel’s failure to object was not a tactical decision,
we find this record is sufficient to conclude that Stelly was
not prejudiced by counsel’s alleged deficient performance.37
Our analysis in State v. Iromuanya 38 and State v. Dubray 39
is instructive.
In Iromuanya, we considered whether defense counsel was
ineffective for failing to object to the prosecutor’s improper
statements and questions. During opening statements, the pros-
ecutor remarked about one victim’s accomplishments in col-
legiate soccer and the other victim’s academic achievements.
35
See State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
36
Id. at 813, 806 N.W.2d at 423, quoting Ayers v. State, 802 A.2d 278 (Del.
2002).
37
See Hibler, supra note 33.
38
Iromuanya, supra note 35.
39
Dubray, supra note 4.
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Cite as 304 Neb. 33The prosecutor also asked the surviving victim to recall for
the jury how he learned of the other victim’s death. We disap-
proved of the prosecutor’s improper statements and question,
but we found the defendant was not prejudiced by the defi-
cient conduct. We reasoned the trial court had orally instructed
jurors before trial that attorney statements and arguments were
not evidence. And we noted that the statements represented
short moments in a long trial during which many other wit-
nesses testified about the critical issue in the case—whether
the defend­ant had shot at the victims with the intent to kill.
Further, we emphasized that the trial court’s written instruc-
tions informed the jurors that they must not decide the case
based on sympathy or prejudice. We therefore concluded that
the prosecutor’s improper statements and question did not
result in prejudicial error.
In Dubray, we considered whether defense counsel was defi-
cient for failing to object to improper remarks the prosecutor
made, during closing arguments, about the victim’s personal
qualities and attributes:
“Now, I don’t — never knew [the victims]. These are
two beautiful human beings. They had love in their heart,
they had goals, they had aspirations, they had children,
they had all of those things in life that people could
want. Nothing was perfect but is it ever for any of us?
And to have their lives taken from them so savagely, so
brutally at 22 years old. And [one victim is] never going
to his boy’s ball games. And [the other victim will] never
see her kids again. ‘Take care of my baby.’ That’s what
you are supposed to be doing. That’s what she’s sup-
posed to be doing. They were killed for no reason. He
took their lives and the evidence shows that he did so
brutally with premeditation.
“Find him guilty of two counts of first degree murder
and use of a weapon. The law requires it. And justice
demands it. Thank you.”40
40
Id. at 220, 854 N.W.2d at 600.
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Cite as 304 Neb. 33We found this argument was improper, but concluded the
defendant could not show prejudice from his counsel’s fail-
ure to object. We found it significant that the trial court had
admonished the jury not to let sympathy or passion influence
its verdict and also had instructed that the attorneys’ state-
ments were not evidence. Moreover, we noted that the evidence
against the defendant was “strong” and that, viewing the trial
as a whole, we could not find the defendant had been deprived
of a fair trial because of the prosecutor’s remarks.41
We reach a similar conclusion here. Even assuming trial
counsel performed deficiently by failing to object to at least
some of the testimony and argument about Branch’s personal
traits, Stelly cannot show he was deprived of a fair trial or
demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have
been different. Here, as in Iromuanya 42 and Dubray, the tes-
timony and argument regarding the personal attributes of the
victim were a small part of an otherwise lengthy trial in which
there was strong evidence of the defendant’s guilt. Moreover,
the trial court admonished the jury not to let sympathy or
prejudice influence its decision and also instructed the jury that
statements, arguments, and questions of the lawyers for the
State and the defendant were not evidence.
We conclude the record affirmatively shows that Stelly
cannot demonstrate he was prejudiced by any deficient per-
formance of his trial counsel in failing to object to testimony
and argument regarding the personal attributes of Branch.
This claim of ineffective assistance of trial counsel is with-
out merit.
(c) Failure to Investigate
Stelly asserts his trial counsel was ineffective in failing
to independently investigate certain defenses and failing to
interview or question certain witnesses. He argues generally
41
Id. at 228, 854 N.W.2d at 605.
42
Iromuanya, supra note 35.
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Cite as 304 Neb. 33that had trial counsel done so, he would have discovered or
adduced evidence helpful to Stelly’s defense. Stelly’s brief sets
out 16 such claims, which we summarize and number for ease
of reference:
(1) Trial counsel failed to consult with or call as a witness
an expert on the ShotSpotter system. Such an expert would
have testified that the ShotSpotter equipment recorded two
separate shootings in two different locations at approximately
2:37 a.m. on January 11, 2017, rather than one shooting in the
area of 3615 Laurel Avenue.
(2) Trial counsel failed to investigate or subpoena Carrie
Crook as a witness. Crook would have testified that, contrary
to the State’s prosecution theory, Stelly did not borrow a PT
Cruiser from White during the month of January 2017, but
continued to drive his 1985 Chevy Caprice. Crook would
have further testified that White loaned the PT Cruiser to
many people.
(3) Trial counsel failed to investigate video from a cloth-
ing store that would have shown Stelly was not driving a PT
Cruiser on January 10, 2017.
(4) Trial counsel failed to consult with or call as a witness
an independent expert in the field of ballistics upon learning
that the State’s ballistics expert could not conclusively deter-
mine whether the bullets recovered were fired from the same
firearm. An independent ballistics expert would have testified
that the bullets were fired from more than one firearm and
would support a conclusion that some bullets were planted at
the scene.
(5) Trial counsel failed to investigate the source of calls to
White’s cell phone from two specific telephone numbers which
would have revealed that officers called White’s cell phone
themselves after illegally searching the LG cell phone found
near Branch’s body without a warrant.
(6) Trial counsel failed to obtain Stelly’s clothing “as seen in
[a convenience store] video,” which clothing was “available”
to trial counsel and would have disproved the State’s theory
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Cite as 304 Neb. 33that Stelly either hid or destroyed the clothing he was wearing
at the time of the shooting.43
(7) Trial counsel failed to obtain the recording of a call to
the 911 emergency dispatch service to report the shooting.
Stelly claims the recording would have demonstrated that one
or more officers testified falsely as to the time they arrived at
the crime scene.
(8) Trial counsel failed to investigate the circumstances of
a second crime scene that was being processed on January
11, 2017, as testified to by a technician who testified that
she was “working that day and responding to another crime
scene, but was asked to drop off some scanning equipment to
a homicide investigation” in the area of 3615 Laurel Avenue.
Further investigation would have revealed that shell casings
or bullet fragments allegedly found at the scene of Branch’s
shooting came from the other crime scene being processed by
the technician.
(9) Trial counsel failed to investigate or ask whether the
State’s witnesses who lived in the area of the shooting, but not
directly on Laurel Avenue, believed they heard shots from two
different shootings.
(10) Trial counsel failed to consult with and call as a wit-
ness an independent DNA expert who, upon comparing the
DNA swabs taken from inside the PT Cruiser (which were not
submitted for testing) with known samples taken from Stelly,
would have testified that Stelly’s DNA was not found on any
surfaces or objects inside the PT Cruiser.
(11) Trial counsel failed to consult with and call as a wit-
ness an independent fingerprint expert who, upon analyzing
the latent fingerprint evidence allegedly obtained by the offi-
cers and technicians who testified for the State, would have
testified that Stelly’s fingerprints were not present on the sur-
faces claimed by the technicians.
(12) Trial counsel failed to consult with and call as a wit-
ness an independent cell phone expert who, upon analyzing
43
Brief for appellant at 29.
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Cite as 304 Neb. 33the LG cell phone found near Branch’s body, would have testi-
fied that the data officers purportedly extracted from the LG
cell phone was not in fact present on it and that one or more
officers manufactured cell phone evidence. Such expert would
also have testified that officers sent and received text messages
and voice calls using the LG cell phone, but testified falsely
and failed to disclose this fact to trial counsel, the trial court,
and the jury.
(13) Trial counsel failed to elicit testimony or obtain and
introduce 911 records that would have demonstrated that the
times of the 911 calls made by two individuals disprove the
officers’ testimonies as to the timeline of the shootings on
January 11, 2017. Such testimony would have demonstrated
that the officers changed Branch’s time of death from the
actual time, approximately 11 p.m. on January 10, to the time
testified to at trial, approximately 2:37 a.m. on January 11.
(14) Trial counsel failed to elicit testimony or obtain and
introduce Omaha Fire Department records that would have
demonstrated that the arrival times of the fire department para-
medics disprove the officers’ testimony as to the timeline of the
shootings on January 11, 2017.
(15) Trial counsel failed to elicit testimony from all the
resident witnesses as to their best estimates of the time of
night they heard shots and saw the PT Cruiser. Said testimony
would have disproved the officers’ testimony as to the timeline
of the shootings on January 11, 2017. Such testimony would
have demonstrated that officers changed Branch’s time of
death from the actual time, approximately 11 p.m. on January
10, to the time testified to at trial, approximately 2:37 a.m. on
January 11.
(16) Trial counsel failed to ask questions of the State’s wit-
nesses that would have revealed a break in the chain of custody
of the shell casings and bullet fragment evidence allegedly
recovered at the scene of the shooting and supported a defense
theory that officers planted evidence from the other crime
scene being processed on January 11, 2017, by a technician.
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Cite as 304 Neb. 33Stelly suggests the record is insufficient to resolve any
of these 16 claims on direct appeal. The State agrees and
addresses all 16 claims collectively in a single sentence, sug-
gesting they are “better left for postconviction review.”44 But
on direct appeal, our appellate review of ineffective assistance
claims requires more than just noting the claims and postpon-
ing consideration for another day.
An appellate court is required to consider whether the defend­
ant has adequately alleged a claim of ineffective assistance,45
and if so, must then consider whether the record on appeal is
sufficient to conclusively determine whether counsel did or
did not provide effective assistance and whether the defendant
was or was not prejudiced by counsel’s alleged deficient per­
formance.46 In the future, we encourage all parties to address
these considerations in their appellate briefing.
We have considered Stelly’s claims in light of the record
on appeal. As we explain below, we conclude that some of his
claims were insufficiently pled. Of those claims that were suf-
ficiently pled, we conclude some are affirmatively refuted by
the record and others cannot be resolved on direct appeal.
(i) Record Affirmatively Refutes
Claims 5, 6, 9, and 15
a. White’s Cell Phone, Claim 5
Stelly claims that if an investigation had been undertaken,
counsel would have discovered that police officers called
White’s cell phone after “illegally” searching Stelly’s LG cell
phone “without a warrant.” 47 As noted earlier in our analy-
sis of Stelly’s motion to suppress, the search of his LG cell
phone was pursuant to a valid warrant. Because there was no
illegal search of Stelly’s LG cell phone, the entire premise
44
Brief for appellee at 19.
45
See, Manjikian, supra note 29; Filholm, supra note 27.
46
See Hibler, supra note 33.
47
Brief for appellant at 29.
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Cite as 304 Neb. 33of this claim fails. There is no merit to this claim of ineffec-
tive assistance.
b. Clothing From Video, Claim 6
Stelly claims the clothes he was wearing could be “seen” 48
in a convenience store video taken the night of the murder,
and he alleges trial counsel was deficient in not obtaining that
clothing to rebut the State’s theory at trial that Stelly either
hid or destroyed the clothing he was wearing the night of
the murder.
The convenience store video is a part of the record, and we
have reviewed it. In the video, the PT Cruiser can be seen as it
proceeds down the roadway, but neither the occupants inside,
nor their clothing, are plainly visible. Because the video does
not show the clothing Stelly was wearing, the record affirma-
tively refutes this allegation of deficient performance.
c. Questions About Two
Shootings, Claim 9
At trial, the State called several witnesses who lived in the
area of the shooting, but not on Laurel Avenue. Each testified
to hearing multiple gunshots in the early hours of January 11,
2017. They testified that they heard between four and eight
shots fired, and each described the gunshots as rapidly occur-
ring, one right after the other.
Stelly alleges his trial counsel was deficient because he
failed to inquire whether these lay witnesses believed the
shots were from “two different shootings.” 49 But he does not
­suggest any of these witnesses had special training or knowl-
edge in ballistics or were otherwise capable of differentiat-
ing the source of bullets based on their sound. As such, any
question seeking to elicit an opinion from these witnesses on
whether the shots were coming from more than one shooting
would have been objectionable. Because counsel cannot be
48
Id.49
Id. at 30.
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Cite as 304 Neb. 33deficient for failing to ask a plainly objectionable question,
this claim is without merit.
d. Testimony of Timeline From
Neighborhood Witnesses,
Claim 15
Stelly claims his trial counsel failed to elicit testimony from
witnesses regarding their “best estimates of the time” 50 when
they heard shots and saw the PT Cruiser. He claims that if
counsel had done so, he would have obtained information that
the shooting occurred at 11 p.m. on January 10, 2017, contra-
dicting the State’s evidence that the shooting occurred at 2:37
a.m. on January 11.
We conclude the record affirmatively refutes this claim of
deficient performance. Each witness testified to having heard
gunshots and seen the PT Cruiser in the early hours of January
11, 2017. In light of this testimony, Stelly cannot show preju-
dice from his trial counsel’s failure to question the witnesses
about their best estimates of when the shooting occurred. This
claim of ineffective assistance is meritless.
(ii) Part of Claim 14 and All of
Claim 16 Lack Particularity
a. Omaha Fire Department
Records, Claim 14
Stelly’s claim 14 is twofold. He claims that his trial counsel
failed to elicit testimony about Omaha Fire Department records
that would have contradicted the State’s evidence as to the
timeline of the shooting on January 11, 2017, and he claims
that his trial counsel failed to actually obtain and introduce
the Omaha Fire Department records. As to the first part of his
claim, Stelly does not allege what testimony his counsel should
have sought to elicit or from whom, and thus, he has failed
to allege deficient performance with sufficient particularity.
As we note later in our analysis, the second part of claim 14
50
Id. at 31.
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Cite as 304 Neb. 33is alleged with sufficient particularity, but the record does not
permit us to resolve it on direct appeal.
b. Chain of Custody, Claim 16
Stelly claims his trial counsel failed to ask questions of the
State’s witnesses that would have revealed a break in the chain
of custody of the shell casing and bullet fragment evidence
recovered from the scene of the shooting. He suggests such
a break would have supported a defense that officers planted
evidence from another crime scene being processed on January
11, 2017.
[20] But Stelly does not allege which of the State’s many
witnesses should have been questioned about the possible
break in the chain of custody or how their testimony would
reveal such a break. We conclude Stelly has failed to allege
this claim of deficient performance with sufficient particular-
ity. A claim of ineffective assistance that is insufficiently stated
is no different than a claim not stated at all.51
(iii) Record Insufficient to Resolve Claims
1 Through 4, 7, 8, and 10 Through 13
and Part of Claim 14
We conclude Stelly’s remaining claims of ineffective
assist­ance cannot be resolved on direct appeal, because the
record is not sufficient to conclusively determine whether
counsel did or did not perform in a deficient manner or
whether Stelly was or was not prejudiced by counsel’s alleged
deficient perform­ance.52 We emphasize two important points
about our conclusion that the record is insufficient to resolve
these claims.
[21] First, when an appellate court finds, on direct appeal,
that the record is not sufficient to resolve a claim of ineffective
assistance, it should not be misunderstood as a finding that the
claim will necessarily require an evidentiary hearing if raised
51
See State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018).
52
See State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
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STATE v. STELLY
Cite as 304 Neb. 33in a motion for postconviction relief,53 because that determina-
tion is governed by an entirely different standard.54
[22] And second, just because an appellate court finds the
record on direct appeal is insufficient to resolve a claim of
ineffective assistance, it does not mean that a postconviction
court will necessarily be precluded from later finding the
existing record affirmatively refutes the same claim. Several
factors make this so. Sometimes, critical portions of the exist-
ing trial record are not included in the appellate record, but
are later available to the postconviction court. Additionally,
because a defendant on direct appeal is not required to
make specific allegations of prejudice,55 the appellate court
often has an incomplete understanding of how a defendant
claims to have been prejudiced by certain deficient conduct.
Consequently, a finding on direct appeal that the existing
record is insufficient to determine a claim of deficient con-
duct does not speak to whether the existing record will be
sufficient to affirmatively refute prejudice once the claim is
alleged on postconviction.
4. Cumulative Error
Finally, Stelly argues that the cumulative effect of the trial
court’s errors, and his trial counsel’s deficiencies, deprived
him of a fair trial. We have recognized the doctrine of cumu-
lative error in the context of a criminal jury trial,56 but it is not
supported in this case.
We found no merit to any of Stelly’s assigned errors. And
we concluded that 8 of his 18 claims of ineffective assist­
ance are either without merit or not alleged with sufficient
53
Filholm, supra note 27.
54
See, e.g., State v. Tyler, 300 Neb. 365, 918 N.W.2d 306 (2018) (to be
entitled to evidentiary hearing, prisoner must allege facts in motion for
postconviction relief that, if proved, would constitute violation of his or
her rights under U.S. or Nebraska Constitution).
55
Filholm, supra note 27.
56
See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
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Cite as 304 Neb. 33particularity. We are unable, on direct appeal, to resolve
Stelly’s remaining claims of ineffective assistance of trial
counsel, and thus, those unresolved claims cannot form the
basis for a claim of cumulative error. Stelly’s cumulative error
argument is without merit.
V. CONCLUSION
For the foregoing reasons, we affirm Stelly’s convictions
and sentences.
A ffirmed.
Heavican, C.J., not participating.