State v. Martinez , 302 Neb. 526 ( 2019 )


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    302 Nebraska R eports
    STATE v. MARTINEZ
    Cite as 
    302 Neb. 526
    State of Nebraska, appellee, v.
    Larry G. M artinez, appellant.
    ___ N.W.2d ___
    Filed March 15, 2019.    No. S-18-618.
    1. Postconviction: Constitutional Law: Appeal and Error. In appeals
    from postconviction proceedings, an appellate court reviews de novo a
    determination that the defendant failed to allege sufficient facts to dem-
    onstrate a violation of his or her constitutional rights or that the record
    and files affirmatively show that the defendant is entitled to no relief.
    2. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
    Error. 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 per­
    formance was deficient and that this deficient performance actually
    prejudiced the defendant’s defense. To show prejudice under the preju-
    dice component of the Strickland test, the defendant must demonstrate
    a reasonable probability that but for his or her counsel’s deficient per-
    formance, the result of the proceeding would have been different. A rea-
    sonable probability does not require that it be more likely than not that
    the deficient performance altered the outcome of the case; rather, the
    defendant must show a probability sufficient to undermine confidence in
    the outcome.
    3. Effectiveness of Counsel: Proof. The two prongs of the ineffective
    assistance of counsel test under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674 (1984), may be addressed in
    either order.
    4. Postconviction: Constitutional Law: Judgments. Postconviction relief
    is available to a prisoner in custody under sentence who seeks to be
    released on the ground that there was a denial or infringement of his or
    her constitutional rights such that the judgment was void or voidable.
    5. Postconviction: Constitutional Law: Proof. In a motion for post-
    conviction relief, the defendant must allege facts which, if proved,
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    constitute a denial or violation of his or her rights under the U.S. or
    Nebraska Constitution, causing the judgment against the defendant to be
    void or voidable.
    6.    ____: ____: ____. A court must grant an evidentiary hearing to resolve
    the claims in a postconviction motion when the motion contains factual
    allegations which, if proved, constitute an infringement of the defend­
    ant’s rights under the Nebraska or federal Constitution.
    7.    Postconviction: Proof. If a postconviction motion alleges only conclu-
    sions of fact or law, or if the records and files in the case affirmatively
    show that the defendant is entitled to no relief, the court is not required
    to grant an evidentiary hearing.
    8.    Postconviction: Appeal and Error. A motion for postconviction relief
    cannot be used to secure review of issues which were or could have
    been litigated on direct appeal.
    9.    Confessions: Police Officers and Sheriffs. Coercive police activity is a
    necessary predicate to a finding that a confession is not voluntary.
    10.    Effectiveness of Counsel. Defense counsel is not ineffective for failing
    to raise an argument that has no merit.
    11.    Homicide: Intent: Proof: Words and Phrases. The deliberation ele-
    ment of first degree murder means not suddenly or rashly, and requires
    the State to prove that the defendant considered the probable conse-
    quences of his act before committing it.
    12.    Homicide: Intent: Time: Proof. The premeditation element of first
    degree murder requires the State to prove that a defendant formed the
    intent to kill a victim before doing so, but no particular length of time
    for premeditation is required.
    13.    Criminal Law: Intent: Time: Proof. A defendant may, with appro-
    priate evidence, try to defeat a charge by proving that at the time the
    offense occurred, the defendant lacked the ability to intend the voluntary
    and probable consequences of his or her act.
    Appeal from the District Court for Cheyenne County: Derek
    C. Weimer, Judge. Affirmed.
    Jerrod P. Jaeger for appellant.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ.
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    STATE v. MARTINEZ
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    Papik, J.
    Larry G. Martinez was convicted by a jury of first degree
    murder and use of a firearm to commit a felony. We affirmed
    his convictions and sentences on direct appeal. See State v.
    Martinez, 
    295 Neb. 1
    , 
    886 N.W.2d 256
    (2016). Martinez filed a
    motion for postconviction relief, which was denied without an
    evidentiary hearing. Martinez appeals the denial of his motion
    for postconviction relief without an evidentiary hearing, and
    we affirm.
    BACKGROUND
    Events Surrounding Death of Victim.
    We provided a summary of the facts regarding this case on
    direct appeal, and we quote from that opinion at length below.
    Martinez was romantically involved with the victim,
    Mandy Kershman. The record shows that this relationship
    was tumultuous, with the couple fighting often. About a
    week prior to the murder, Martinez told one of his room-
    mates that he was “going to kill that fucking bitch,” refer-
    ring to Kershman.
    On July 18, 2012, at approximately 4:50 p.m.,
    Kershman was shot and killed while sitting on the couch
    at a friend’s home. The cause of death was a single gun-
    shot wound to her chest.
    At the time of the shooting, Kershman was alone in
    the living room; her friend, Leland Blake, was on the
    computer in the next room. Blake testified that Kershman
    had told him Martinez was planning to come over and
    that immediately prior to the shooting, Blake heard
    Martinez’ voice in the next room with Kershman. Blake
    testified that Kershman and Martinez were engaged in
    some type of verbal altercation. Moments later Blake
    heard gunshots, and upon entering the living room Blake
    found Kershman dead on the couch. Through the win-
    dow, Blake saw Martinez entering his vehicle and driv-
    ing away.
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    Martinez was subsequently located and questioned
    about the shooting. During the course of that interview,
    Martinez admitted that he shot Kershman and told law
    enforcement where to find the weapon. In addition,
    Martinez admitted to one of his roommates that he shot
    Kershman. A gun was located in Martinez’ house in the
    place he had indicated. That weapon was consistent with
    the type of weapon used to shoot Kershman. Because of
    the type of weapon used, it was not possible to conclu-
    sively find that the gun found in Martinez’ home was the
    murder weapon. Martinez was arrested and eventually
    charged with first degree murder.
    
    Id. at 2-3,
    886 N.W.2d at 259.
    Trial and Sentencing.
    Prior to trial, Martinez filed a motion to suppress the state-
    ments he made in his interview with law enforcement. He
    argued that he suffered from a hearing impairment and that
    because he was not provided with an interpreter, Neb. Rev.
    Stat. § 20-152 (Reissue 2012) required that his statements be
    suppressed. The district court denied the motion to suppress,
    finding that Martinez was not “deaf or hard of hearing” for
    purposes of § 20-152. It also found that Martinez’ statements
    were voluntary and thus not subject to suppression under
    Jackson v. Denno, 
    378 U.S. 368
    , 
    84 S. Ct. 1774
    , 
    12 L. Ed. 2d 908
    (1964).
    At trial, Martinez’ defense was that he shot Mandy Kershman
    during a sudden quarrel and, thus, was guilty of only man-
    slaughter. Following a jury trial, however, Martinez was con-
    victed of first degree murder and use of a firearm to commit
    a felony.
    After trial, Martinez’ counsel asked the district court to
    determine his mental competency to be sentenced. A hear-
    ing was held at which two defense experts testified that
    Martinez was incompetent, with one of those experts testify-
    ing that because Martinez’ incompetency was based upon
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    his intellectual functioning, it was unlikely that his compe-
    tency could be restored. A witness for the State testified that
    Martinez was competent. The State also offered the testimony
    of several lay witnesses who testified as to their observations
    and interactions with Martinez.
    The district court found Martinez to be competent, and he
    was sentenced to life imprisonment for the murder conviction,
    plus an additional 10 to 50 years’ imprisonment for the use of
    a firearm conviction.
    Direct Appeal.
    Martinez appealed. He contended that the district court erred
    by not suppressing his statements due to his hearing impairment
    and by finding him competent. This court affirmed. See State v.
    Martinez, 
    295 Neb. 1
    , 
    886 N.W.2d 256
    (2016). We found that
    the district court did not err by finding Martinez was not deaf
    or hard of hearing for purposes of § 20-152. We explained that
    the video of Martinez’ interview with law enforcement showed
    that he was able to follow along and answer questions appro-
    priately without an interpreter or hearing aids. Additionally, we
    noted the testimony of acquaintances of Martinez who did not
    even know that he suffered from a hearing impairment.
    We also concluded that the evidence was sufficient for
    Martinez to be found competent. While two experts testified
    that Martinez was incompetent due to his low level of intellec-
    tual functioning, a third expert testified that it was his opinion
    that Martinez was malingering and that he was competent to
    stand trial. We determined that this testimony, along with the
    testimony of several lay witnesses regarding Martinez’ level of
    functioning, was sufficient to show that Martinez was compe-
    tent. See 
    id. Motion for
    Postconviction Relief.
    Martinez filed a motion for postconviction relief, asserting
    ineffective assistance of counsel and requesting an eviden-
    tiary hearing. Relevant to this appeal, Martinez alleged that
    his trial counsel was ineffective (1) for not raising his mental
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    capacity in support of an argument that his statements to law
    enforcement should have been suppressed for being invol-
    untary and (2) for not raising an argument that his mental
    capacity precluded him from acting with the premeditation,
    deliberation, and intent necessary to be found guilty of first
    degree murder.
    The district court denied Martinez’ motion without an evi-
    dentiary hearing. In its order, the district court reasoned that
    Martinez could have raised both of the claims at issue in this
    appeal in his direct appeal, but did not. The district court also
    found that, even if it was assumed that Martinez’ counsel pro-
    vided deficient representation, Martinez could not demonstrate
    he was prejudiced.
    Martinez timely appealed.
    ASSIGNMENTS OF ERROR
    Martinez assigns, restated, that the trial court erred by deny-
    ing him postconviction relief without an evidentiary hearing
    on his claims that his counsel was ineffective for not rais-
    ing his mental capacity (1) in support of an argument that
    his statements to law enforcement were involuntary and (2)
    in support of an argument that he could not have formed the
    requisite deliberation, premeditation, and intent to commit the
    crimes charged.
    STANDARD OF REVIEW
    [1] In appeals from postconviction proceedings, an appel-
    late court reviews de novo a determination that the defendant
    failed to allege sufficient facts to demonstrate a violation of his
    or her constitutional rights or that the record and files affirma-
    tively show that the defendant is entitled to no relief. State v.
    Tyler, 
    301 Neb. 365
    , 
    918 N.W.2d 306
    (2018).
    ANALYSIS
    Legal Standards.
    Martinez contends that the district court erred by dismiss-
    ing his claims of ineffective assistance of counsel without
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    an evidentiary hearing. His appeal thus requires us to apply
    the familiar framework for ineffective assistance of counsel
    claims set forth by the U.S. Supreme Court in Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674
    (1984). We briefly review aspects of that framework relevant
    to this appeal, as well as standards governing postconviction
    relief before proceeding to Martinez’ assignments of error.
    [2,3] To prevail on a claim of ineffective assistance of coun-
    sel under Strickland, the defendant must show that his or her
    counsel’s performance was deficient and that this deficient
    performance actually prejudiced the defendant’s defense. State
    v. Taylor, 
    300 Neb. 629
    , 
    915 N.W.2d 568
    (2018). To show
    prejudice under the prejudice component of the Strickland test,
    the defendant must demonstrate a reasonable probability that
    but for his or her counsel’s deficient performance, the result of
    the proceeding would have been different. 
    Taylor, supra
    . A rea-
    sonable probability does not require that it be more likely than
    not that the deficient performance altered the outcome of the
    case; rather, the defendant must show a probability sufficient
    to undermine confidence in the outcome. 
    Id. The two
    prongs of
    this test may be addressed in either order. See 
    id. [4,5] Postconviction
    relief is available to a prisoner in cus-
    tody under sentence who seeks to be released on the ground
    that there was a denial or infringement of his or her constitu-
    tional rights such that the judgment was void or voidable. 
    Id. Thus, in
    a motion for postconviction relief, the defendant must
    allege facts which, if proved, constitute a denial or violation of
    his or her rights under the U.S. or Nebraska Constitution, caus-
    ing the judgment against the defendant to be void or voidable.
    
    Taylor, supra
    .
    [6,7] A court must grant an evidentiary hearing to resolve the
    claims in a postconviction motion when the motion contains
    factual allegations which, if proved, constitute an infringe-
    ment of the defendant’s rights under the Nebraska or federal
    Constitution. 
    Taylor, supra
    . If a postconviction motion alleges
    only conclusions of fact or law, or if the records and files in
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    the case affirmatively show that the defendant is entitled to no
    relief, the court is not required to grant an evidentiary hear-
    ing. 
    Id. Waiver. As
    noted above, the district court found that Martinez had
    waived his ineffective assistance of counsel claims by failing
    to raise them on direct appeal. Martinez argues this was incor-
    rect, and we agree.
    [8] It is true that a motion for postconviction relief cannot
    be used to secure review of issues which were or could have
    been litigated on direct appeal. State v. Hessler, 
    288 Neb. 670
    ,
    
    850 N.W.2d 777
    (2014). This rule, however, is not applicable
    in this case. Martinez was represented by the same counsel at
    trial and on direct appeal. This motion for postconviction relief
    was thus his first opportunity to assert claims of ineffective
    assistance of counsel. See 
    Taylor, supra
    .
    While the district court was incorrect in finding that Martinez
    waived his claims of ineffective assistance of counsel, it also
    found that Martinez’ claims failed on their merits. We now turn
    to consider the merits of his claims of ineffective assistance
    of counsel.
    Voluntariness of Statements.
    Martinez acknowledges that the district court determined
    his statements to law enforcement were voluntary prior to
    trial. He contends, however, that his counsel provided defi-
    cient representation by not raising his mental capacity when
    the voluntariness of his statements was under consideration.
    He points to the fact that, after trial, two medical professionals
    found him to be incompetent, with one finding him to have an
    “extremely low IQ.” He contends that had his counsel intro-
    duced evidence of his mental capacity at the time the court
    was considering the voluntariness of his statements, there is a
    reasonable probability the court would have found those state-
    ments to be involuntary and therefore would have suppressed
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    them. In support of this argument, Martinez directs us to cases
    from both this court and the Nebraska Court of Appeals in
    which it has been observed that the intelligence, education,
    and background of the accused are factors that can be con-
    sidered in determining whether a defendant’s statement was
    voluntary or coerced. See, e.g., State v. Erks, 
    214 Neb. 302
    ,
    
    333 N.W.2d 776
    (1983); State v. Grimes, 
    23 Neb. Ct. App. 304
    ,
    
    870 N.W.2d 162
    (2015).
    [9] But while the intelligence, education, and background
    of the accused are factors that may be relevant to whether a
    confession was voluntary, we have also repeatedly held that
    coercive police activity is a necessary predicate to a finding
    that a confession is not voluntary. See State v. Hernandez, 
    299 Neb. 896
    , 
    911 N.W.2d 524
    (2018) (collecting cases). As we
    have explained, “[t]he prohibition on the use of involuntary
    confessions is at its core—like other constitutional rights—a
    limitation on the power of government. Thus, the focus of this
    inquiry is on the conduct of governmental actors.” 
    Id. at 914,
    911 N.W.2d at 540.
    On appeal, Martinez has not even attempted to identify any
    coercive conduct by the two law enforcement officers who
    interviewed him. The video of that interview makes clear that
    he could not do so. The video shows that neither law enforce-
    ment officer made threats or promises to Martinez. The officers
    did not raise their voices or otherwise attempt to intimidate
    him. Rather, they sat with Martinez, who was not in hand-
    cuffs or shackled when the statements were made, and calmly
    engaged him in conversation. Neither officer touched Martinez,
    invaded his physical space, or brandished a weapon. The entire
    interview was also relatively short, lasting less than 40 min-
    utes. In sum, nothing the law enforcement officers did in their
    interview with Martinez could be described as coercive.
    [10] In the absence of any evidence of coercion, an empha-
    sis on Martinez’ mental capacity could not have rendered his
    statements to law enforcement involuntary. Because defense
    counsel is not ineffective for failing to raise an argument that
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    has no merit, see State v. Stricklin, 
    300 Neb. 794
    , 
    916 N.W.2d 413
    (2018), we find no error in the denial of this claim with-
    out an evidentiary hearing.
    Premeditation, Deliberation, and Intent.
    [11,12] Martinez also contends that his trial counsel was
    ineffective for failing to argue that his mental capacity pre-
    cluded him from committing first degree murder. To convict
    Martinez of first degree murder, the State was required to show
    that he killed Kershman purposely and did so with deliberate
    and premeditated malice. See State v. Braesch, 
    292 Neb. 930
    ,
    
    874 N.W.2d 874
    (2016). The deliberation element means not
    suddenly or rashly, and requires the State to prove that the
    defendant considered the probable consequences of his act
    before committing it. 
    Id. The premeditation
    element requires
    the State to prove that a defendant formed the intent to kill
    a victim before doing so, but no particular length of time for
    premeditation is required. 
    Id. [13] In
    Martinez’ appellate brief, he claims that because of
    his diminished capacity, he was not capable of acting with the
    deliberation, premeditation, and intent necessary to commit
    first degree murder. We have held that a defendant may, with
    appropriate evidence, try to defeat a charge by proving that at
    the time the offense occurred, the defendant lacked the abil-
    ity to intend the voluntary and probable consequences of his
    or her act. See State v. Urbano, 
    256 Neb. 194
    , 
    589 N.W.2d 144
    (1999).
    Martinez contends his counsel should have investigated his
    mental capacity prior to trial and suggests that if they had, the
    experts who testified at his competency hearing could have
    testified at trial. Martinez’ motion points to the testimony
    from medical professionals that he was incompetent and had
    a low IQ as evidence that his counsel should have presented
    at trial. This testimony, however, was countered both by a
    witness for the State who testified that Martinez was com-
    petent, as well as by several lay witnesses who testified to
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    their observations and interactions with Martinez which sug-
    gested competency.
    Even if counsel should have investigated Martinez’ men-
    tal capacity and introduced the evidence Martinez points to,
    however, Martinez must still prove that he was prejudiced
    by a failure to do so. In a number of cases, courts have held
    that defendants who claim that their counsel should have
    introduced evidence of a mental limitation and argued that
    the limitation rendered them unable to act with the necessary
    intent could not establish prejudice in light of factual evidence
    introduced at trial showing that they did act with the neces-
    sary intent. See, e.g., Hernandez v. Chappell, 
    913 F.3d 871
    (9th Cir. 2019); Howard v. Horn, 
    56 F. Supp. 3d 709
    (E.D. Pa.
    2014); Morales v. Vaughn, 619 Fed. Appx. 127 (3d Cir. 2015);
    Wallace v. Smith, 58 Fed. Appx. 89 (6th Cir. 2003). We believe
    that is the case here.
    Had evidence regarding Martinez’ intellectual functioning
    been introduced at trial, we see no reasonable probability it
    could have overcome all of the evidence introduced at trial
    showing that Martinez deliberately killed Kershman. About a
    week before Kershman was killed, Martinez told his roommate
    that he was “‘going to kill that fucking bitch,’” referring to
    Kershman. Then in his interview with police, Martinez told the
    officers that he planned to shoot Kershman after she sent him
    a text message that made him angry and that when he drove
    over to Blake’s house, he did so with the intention of shooting
    her. Blake testified that he heard Martinez say “this is for you,
    bitch,” just prior to the gunshot. After the shooting, Martinez
    told his roommate that he shot Kershman, and he hid the gun
    under a coffee table in his house.
    All of the facts recounted above demonstrate that Martinez
    intended to kill Kershman, that he formed the intent to kill her
    before doing so, and that he was capable of and did consider
    the probable consequences of his act before committing it.
    We find no reasonable probability that the testimony Martinez
    argues his counsel should have elicited at trial regarding his
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    mental capacity could have overcome this evidence and pro-
    duced a different result. Because the records and files show
    no reasonable probability that the result of the proceeding
    would have been different, we find the district court did not
    err in denying Martinez postconviction relief without an evi-
    dentiary hearing. See State v. Lyle, 
    258 Neb. 263
    , 
    603 N.W.2d 24
    (1999).
    CONCLUSION
    We find that the district court did not err in denying Martinez’
    motion for postconviction relief without an evidentiary hear-
    ing, and thus affirm.
    A ffirmed.
    Freudenberg, J., not participating.