Appeal from the District Court for Douglas County: J Russell Derr, Judge.
Jerry L. Soucie for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for appellee.
HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[290 Neb. 382] Heavican, C.J.
NATURE OF CASE
Richard K. Cook was convicted of first degree murder and use of a firearm to commit a felony. Cook's conviction was affirmed. Cook now seeks postconviction relief. He appeals the district court's rejection of 28 of his 35 claims for postconviction relief. We conclude that the district court did not err when it denied an evidentiary hearing on the grounds that
investigators fabricated evidence used at Cook's trial and that he received ineffective assistance of counsel from his appellate counsel's failure to raise certain issues related to his trial counsel's performance on direct appeal.
This case is an interlocutory appeal from the district court's order denying some of Cook's claims for postconviction relief of his convictions for first degree murder and use of a weapon to commit a felony. A full recitation of the facts can be found in State v. Cook. Below is a summary of the relevant facts related to this appeal.
Amy Stahlecker's Death.
On April 29, 2000, Amy Stahlecker's body was found on the banks of the Elkhorn River near the intersection of Highway 275 and West Maple Road in Douglas County, Nebraska. Witnesses last saw Stahlecker alive around 1 a.m. on April 29, when she left Omaha to drive back to Fremont, Nebraska. The [290 Neb. 383] white Ford Explorer Stahlecker was driving was found with a blown tire on the side of Highway 275.
Stahlecker's body was found underneath a bridge that was a part of West Maple Road. Stahlecker had been shot multiple times, including once to the back of the head and twice to the face. An autopsy revealed multiple contusions and abrasions on Stahlecker's body. The autopsy also found semen in the vaginal area, but no specific evidence of sexual assault. DNA testing of the semen revealed that it was consistent with Cook's DNA.
On May 2, 2000, Michael Hornbacher, a friend of Cook, contacted a Washington County deputy sheriff and told him that Cook had confessed to Hornbacher that Cook killed Stahlecker. Hornbacher also later gave statements to Nebraska State Patrol investigators. Hornbacher and Cook gave conflicting accounts as to what happened the night Stahlecker was killed and what happened the following day.
Hornbacher testified at trial that Cook and Hornbacher were at a bar the night of Stahlecker's death. Hornbacher saw Cook leave in Cook's truck, and Hornbacher later got a ride home from three people he had met at the bar. Hornbacher's girlfriend, with whom he shared an apartment, testified that she waited up for Hornbacher and that he arrived home at 12:50 a.m. After Hornbacher arrived back at his apartment, he passed out in his bed and did not wake up until 11 or 11:30 a.m.
Believing he left personal items in Cook's truck, Hornbacher called Cook about picking up the items. Cook did not want Hornbacher to come to Cook's residence, so they arranged for Cook to pick up Hornbacher in front of Hornbacher's residence. After Hornbacher got in the truck, ...