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04/12/2019 12:06 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          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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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                             STATE v. MARTINEZ
                              Cite as 302 Neb. 526

      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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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                       STATE v. MARTINEZ
                        Cite as 302 Neb. 526

   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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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                       STATE v. MARTINEZ
                        Cite as 302 Neb. 526

         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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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. MARTINEZ
                         Cite as 302 Neb. 526

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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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. MARTINEZ
                         Cite as 302 Neb. 526

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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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. MARTINEZ
                         Cite as 302 Neb. 526

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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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. MARTINEZ
                         Cite as 302 Neb. 526

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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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                       STATE v. MARTINEZ
                        Cite as 302 Neb. 526

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. 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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                   302 Nebraska R eports
                       STATE v. MARTINEZ
                        Cite as 302 Neb. 526

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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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                       STATE v. MARTINEZ
                        Cite as 302 Neb. 526

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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                   302 Nebraska R eports
                        STATE v. MARTINEZ
                         Cite as 302 Neb. 526

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.
