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 demonstrate a
violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is
entitled to no relief.
Postconviction: Right to Counsel: Appeal and
Error. An appellate court reviews the failure of the
district court to provide court-appointed counsel in a
postconviction proceeding for an abuse of discretion.
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
Postconviction: Constitutional Law: Proof.
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, causing the judgment against the defendant to
be void or voidable.
___: ___. 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 defendant's rights under the Nebraska
or federal Constitution.
Postconviction: Proof. If a postconviction
motion alleges only conclusions 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.
Constitutional Law: Effectiveness of
Counsel. A proper ineffective assistance of counsel
claim alleges a violation of the fundamental constitutional
right to a fair trial.
Neb. 148] 8. 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 performance was deficient and
that this deficient performance actually prejudiced the
defendant's defense. 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. A
reasonable 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
Effectiveness of Counsel: Presumptions:
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, and the entire ineffectiveness
analysis should be viewed with a strong presumption that
counsel's actions were reasonable.
Effectiveness of Counsel. Counsel's
failure to raise novel legal theories or arguments or to make
novel constitutional challenges in order to bring a change in
existing law does not constitute deficient performance.
Aiding and Abetting: Indictments and Informations:
Notice. An information charging a defendant with a
specific crime gives the defendant adequate notice that he or
she may be prosecuted for the crime specified or as having
aided and abetted the commission of the crime specified.
Constitutional Law: Criminal Law: Right to
Counsel. A criminal defendant's Sixth Amendment
right to the assistance of counsel attaches only after the
initiation of adversary judicial criminal proceedings-
whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.
Lesser-Included Offenses: Jury Instructions:
Evidence. A court must instruct on a lesser-included
offense if (1) the elements of the lesser offense for which
an instruction is requested are such that one cannot commit
the greater offense without simultaneously committing the
lesser offense and (2) the evidence produces a rational basis
for acquitting the defendant of the greater offense and
convicting the defendant of the lesser offense.
Postconviction: Right to Counsel. Under the
Nebraska Postconviction Act, it is within the discretion of
the trial court to decide whether counsel shall be appointed
to represent the defendant.
Neb. 149] 15. Postconviction: Justiciable Issues:
Right to Counsel: Appeal and Error. Where the
alleged errors in the postconviction petition before the
district court are either procedurally barred or without
merit, thus establishing that the postconviction proceeding
contained no justiciable issue of law or fact, it is not an
abuse of discretion to fail to appoint postconviction counsel
for an indigent defendant.
from the District Court for Douglas County: Thomas A. Otepka,
C. Oliveira-Coutinho, pro se.
Douglas J. Peterson, Attorney General, and Stacy M. Foust for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Oliveira-Coutinho appeals the order of the district court for
Douglas County which denied his motion for postconviction
relief. Oliveira-Coutinho, who is serving sentences of life
imprisonment for three first degree murder convictions and 20
years' imprisonment for a theft by deception conviction,
set forth numerous claims for postconviction relief. The
district court determined that all of Oliveira-Coutinho's
claims were either insufficiently pled, affirmatively refuted
by the record, or procedurally barred, and the court
therefore denied his motion for postconviction relief without
an evidentiary hearing and without appointing counsel. We
affirm the order denying postconviction relief.
was convicted of three counts of first degree murder in
connection with the 2009 deaths of Vanderlei and Jaqueline
Szczepanik and their son, Christopher Szczepanik.
Oliveira-Coutinho lived with the Szczepaniks and worked for
Vanderlei. He was also convicted of theft by deception based
[304 Neb. 150] on evidence that after their deaths, he
withdrew money from the Szczepaniks' bank account.
Oliveira-Coutinho's convictions and sentences were
affirmed on direct appeal. Further details regarding the
crimes are provided in our opinion on direct appeal.
State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d
27, 2016, Oliveira-Coutinho filed a pro se motion for
postconviction relief in which he set forth numerous claims
of ineffective assistance of counsel both at trial and on
direct appeal. Oliveira-Coutinho had the same counsel at
trial and on direct appeal, and he alleged that this
postconviction action was his first opportunity to raise
issues of ineffective assistance of trial counsel.
Oliveira-Coutinho requested an evidentiary hearing and
appointment of postconviction counsel. Oliveira-Coutinho
filed an amended motion for postconviction relief on June 26,
2017, in which he repeated his original claims and set forth
several new claims. In the amended motion, Oliveira-Coutinho
included almost 50 separate claims.
November 14, 2017, the district court overruled
Oliveira-Coutinho's amended motion for postconviction
relief without an evidentiary hearing. Generally, the court
determined that each of Oliveira-Coutinho's claims was
either not pled with specificity, refuted by the record, or
procedurally barred. In its order overruling the motion, the
court stated that Oliveira-Coutinho's numerous claims
fell into two categories-claims of ineffective assistance of
counsel and claims of prosecutorial misconduct prior to the
appointment of trial counsel. Regarding all the claims of
ineffective assistance of counsel, the court determined
generally that even if counsel's performance was
deficient in any of the ways alleged, the record refuted any
claim that Oliveira-Coutinho suffered prejudice as a result
of such deficient performance. The court stated, "if
counsel were deficient in any of the claims alleged, the
decision in this case would not have been any different in
light of the evidence adduced at trial, which is thoroughly
outlined in the direct appeal opinion." The court
further stated that in [304 Neb. 151] reviewing
Oliveira-Coutinho's motion, it "was unable to find
any specific facts relating to prejudice and instead could
only locate generic statements."
it determined that the failure to specifically allege
prejudice was in itself reason to overrule the motion, the
court addressed Oliveira-Coutinho's specific claims of
ineffective assistance of counsel. The court stated the
claims were "at times confusing and somewhat
overlapping," and it therefore addressed the claims in
the following 11 categories: (i) failure to challenge the
competency of codefendant Valdeir Goncalves-Santos to be a
witness against Oliveira-Coutinho, (ii) failure to object to
a jury instruction regarding a potential mistrial if jurors
violated rules set forth by the court, (iii) failure to
challenge the court's suppression ruling on appeal, (iv)
failure to challenge the court's refusal to sequester the
jury, (v) failure to challenge the aiding and abetting
instruction, (vi) failure to challenge the instruction on
first degree murder, (vii) failure to file a motion to
discharge on speedy trial grounds, (viii) failure to object
to the testimony of Oliveira-Coutinho's wife on grounds
of hearsay and marital privilege, (ix) failure to object to
portions of the State's opening statements, (x) failure
to object to the testimony of various witnesses based on
hearsay and other bases, and (xi) failure to investigate
certain witnesses and evidence. The court addressed these
claims as follows.
Failure to challenge competency of codefendant.
discussed further in our opinion on direct appeal, State
v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740
(2015), Goncalves-Santos testified at Oliveira-Coutinho's
trial, and he generally testified that he and another
individual helped Oliveira-Coutinho kill the Szczepaniks. In
his amended motion for postconviction relief,
Oliveira-Coutinho claimed that counsel was ineffective for
failing to challenge Goncalves-Santos' competency to
testify and for failing to raise the issue on appeal. The
district court determined that these claims were refuted by
the record, which showed that counsel filed a [304 Neb. 152]
motion challenging Goncalves-Santos' competency, the
trial court overruled the motion after a hearing, and counsel
asked for a reconsideration, which the trial court denied.
The court also stated that this court had affirmed the trial
court's rulings on these matters on direct appeal.
Failure to object to jury instruction regarding potential
claimed that counsel was ineffective for failing to object to
"Preliminary Jury Instruction No. 1," which he
alleged stated in part:
"Any juror who violates these restrictions I have
explained to you jeopardizes the fairness of these
proceedings, and a mistrial could result that would require
the entire trial process to start over. As you can imagine, a
mistrial is a tremendous expense and inconvenience to the
parties, to the Court and the taxpayers."
omitted.) He argued that counsel should have objected to this
instruction because it was confusing and prejudicial to his
case and would discourage jurors from reporting misconduct.
The district court determined that the record refuted this
argument because the first jury instruction "filed
October 9, 2012," did not contain the language alleged.
The court also noted that Oliveira-Coutinho failed to cite
any authority establishing that an objection to such an
instruction would have been successful.
Failure to challenge suppression ruling on appeal.
claimed that counsel on direct appeal failed "to raise
and argue a violation of [his] Fifth Amendment right."
In this claim, he refers to a motion to "suppress [his]
February 1st, 2OIO[, ] Stop, Search and Detention
under both the 4thAmendment and the 5th
Amendment." Oliveira-Coutinho stated that counsel on
appeal failed to assign and argue any Fifth Amendment
violation, but he asserts that his "illiteracy prevents
him from adequately present[ing] the Fifth Amendment claim
and argu[ing] how this Claim would have changed the direct
appeal result." The district court noted that counsel
did challenge the suppression ruling on direct appeal but
that the [304 Neb. 153] challenge was not successful. The
court determined that its review of the trial court's
suppression ruling, "in combination with the lack of law
supplied by [Oliveira-Coutinho]," revealed no additional
challenges to the suppression ruling that would have changed
the result of the direct appeal.
Failure to challenge refusal to sequester jury.
claimed that counsel on direct appeal failed to provide an
adequate record for this court to review a claim that the
trial court erred when it overruled a motion to sequester the
jury for the entirety of the trial. He also claimed counsel
failed to raise an issue on appeal regarding whether the
trial court should have sequestered the jury at the start of
deliberations. The district court determined that the record
refuted these claims because (1) counsel raised and argued
the denial of the motion to sequester for the entire trial,
but the assignment of error was rejected on appeal, and (2)
the record showed that "the jury was going to be
sequestered at the request of [Oliveira-Coutinho] during
Failure to challenge aiding and abetting
claimed that trial counsel was deficient for failing to
object to the felony murder instruction because the
instruction allowed the jury to find him guilty if it found
that the killing occurred during the course of a robbery that
he committed either alone or while aiding and abetting
another. He argues that the instruction was in error because
he was not charged under a theory of aiding and abetting and
because the instruction failed to include an intent element
in connection with robbery. In separate but related claims,
Oliveira-Coutinho asserted that counsel was deficient for
failing to inform him prior to trial that he could be
prosecuted under an aiding and abetting theory and for
failing to challenge the constitutionality of Neb. Rev. Stat.
§ 28-206 (Reissue 2016), which provides that "[a]
person who aids, abets, procures, or causes another to commit
any offense may be prosecuted and punished as if he were the
principal offender." He argued that the statute was
unconstitutional because it allowed the State to prosecute a
[304 Neb. 154] defendant under an aiding and abetting theory
without giving notice to the defendant that it intends to do
so. He argued that the statute "makes the fatal
assumption" that those who are subject to it understand
they can be prosecuted under an alternative theory, and he
asserts that because he does not speak English, he was not
aware of the possibility of being convicted as an aider or
district court stated that "the principle of aiding and
abetting has been a staple in Nebraska law" and that
"[Oliveira-Coutinho] fails to provide any authority
creating a realistic constitutional challenged [sic] to the
statute." The court cited case law to the effect that an
information charging a defendant with a specific crime gives
the defendant adequate notice that he or she may be
prosecuted for having aided or abetted the crime. The court
determined that a challenge to the constitutionality of the
statute would have been unsuccessful and that an objection to
the instruction also would have been unsuccessful because the
instruction was supported by the evidence.
Failure to challenge instruction on first degree
claimed that counsel was deficient for failing to object to
the first degree murder instruction, which he asserted was
"faulty, unconstitutional and incomplete." His
claim focused on the provision in the instruction that the
jury had to unanimously agree he was guilty of first degree
murder but that it did not have to be unanimous as to whether
he was guilty under a felony murder theory or under a
premeditated murder theory. He argued that the instruction
was confusing and misleading and that the evidence in this
case did not support a premeditated murder theory.
Oliveira-Coutinho made four additional claims related to this
claim: He claimed that counsel was deficient for (1) failing
on direct appeal to challenge "structural error" in
the court's acceptance of a jury verdict that was
erroneous because it did not require unanimity as to the
theory of first degree murder, (2) failing to challenge on
appeal the sufficiency of the evidence as to each theory, (3)
failing to propose a jury verdict form that would have
required unanimity as to the theory of first degree murder,
and (4) failing to challenge the constitutionality of a jury
verdict form that did not require unanimity.
district court cited case law which, it asserted, had
rejected Oliveira-Coutinho's arguments regarding
unanimity as to alternate theories of first degree murder.
The court concluded that counsel was not ineffective, because
the challenges proposed by Oliveira-Coutinho would not have
Failure to file motion to discharge on speedy trial
grounds. Oliveira-Coutinho claimed counsel was
deficient for failing to move for discharge based on
statutory and constitutional speedy trial grounds and for
failing to raise both issues on appeal. He alleged that he
was charged by information on September 1, 2011; that trial