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State v. Stelly

Supreme Court of Nebraska

September 13, 2019

State of Nebraska, appellee,
v.
Malik M. Stelly, appellant.

         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 historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protection 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 photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative 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.

         [304 Neb. 34] 5. 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, photographs 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 establish 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 prejudice, 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 [304 Neb. 35] specifically 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 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.

         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 determining 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 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 performance.

         18. Criminal Law: Jurors: Proof. Generally, a victim's qualities and personal attributes are irrelevant to the facts that the State must prove in a criminal prosecution and have the potential to distort the jurors' reasoned 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 evidentiary hearing if raised in a motion for postconviction relief, because that determination is governed by an entirely different standard.

         [304 Neb. 36] 22. 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.

          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 convictions for first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited 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 [304 Neb. 37] the 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 registered 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, officers 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 accident. Stelly's fingerprint was recovered from the interior doorframe 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 [304 Neb. 38] by 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 suppress 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 affidavit were received into evidence. The affidavit recited in pertinent 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.
[304 Neb. 39] When [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 telephone belongs to, a suspect or a victim. Affiant [o]fficers believe that if [they] were allowed to examine the electronic 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 affidavit, 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 suppression 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 description 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 [304 Neb. 40] error, 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 apartment. At approximately 8 p.m., Stelly took several photographs 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 [304 Neb. 41] at 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 depicting 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 reference 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 primarily walked or rode his bicycle for transportation. Several times during the trial, testimony was introduced by the State regarding 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.

         [304 Neb. 42] (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 possession of a deadly weapon by a prohibited person. Stelly was sentenced to a term of life imprisonment on the murder conviction 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 photographs over trial counsel's objections. He also asserts 18 different 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

         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.[2]Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently of the trial court's determination.[3]

         The admission of photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect.[4] An appellate court reviews a trial [304 Neb. 43] court's admission of photographs of a victim's body for abuse of discretion.[5]

         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.[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.

         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.[8] As a general rule, the description must enable officers to ascertain and identify the ...


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