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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. STARKS
Cite as 294 Neb. 361
State of Nebraska, appellee, v.
Courtney W. Starks, appellant.
___ N.W.2d ___
Filed July 29, 2016. No. S-15-822.
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 records
and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Proof: Appeal and Error. A defendant requesting
postconviction relief must establish the basis for such relief, and the
findings of the district court will not be disturbed unless they are clearly
erroneous.
3. Postconviction: Constitutional Law: Proof. In a motion for postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute 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.
4. ____: ____: ____. 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.
5. 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.
6. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
7. 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.
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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.
8. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim
of ineffective assistance of appellate counsel which could not have been
raised on direct appeal may be raised on postconviction review.
9. Effectiveness of Counsel: Appeal and Error. When analyzing a claim
of ineffective assistance of appellate counsel, courts usually begin by
determining whether appellate counsel actually prejudiced the defend
ant. That is, courts begin by assessing the strength of the claim appellate
counsel failed to raise.
10. ____: ____. Counsel’s failure to raise an issue on appeal could be inef-
fective assistance only if there is a reasonable probability that inclusion
of the issue would have changed the result of the appeal.
11. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-
conduct encompasses conduct that violates legal or ethical standards for
various contexts because the conduct will or may undermine a defend
ant’s right to a fair trial.
12. Trial: Evidence. There are three components of a true violation under
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963): The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or inadver-
tently; and prejudice must have ensued.
Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Affirmed.
Courtney W. Starks, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
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STATE v. STARKS
Cite as 294 Neb. 361
Miller-Lerman, J.
NATURE OF CASE
Courtney W. Starks, who stands convicted of first degree
murder and use of a weapon to commit a felony, appeals the
order of the district court for Douglas County which denied
his motion for postconviction relief without an evidentiary
hearing. Starks generally claimed that his counsel on direct
appeal provided ineffective assistance by failing to raise sev-
eral issues on appeal. We affirm the district court’s denial of
Starks’ motion for postconviction relief.
STATEMENT OF FACTS
Starks was convicted of first degree murder and use of a
weapon to commit a felony in connection with the death of
Linda Wierzbicki in 1986. We affirmed his convictions and
sentences in State v. Starks, 229 Neb. 482, 427 N.W.2d 297
(1988), and a complete discussion of the facts of the case may
be found therein. Only those facts relevant to Starks’ claims in
the current postconviction action are set forth here.
One of Starks’ assignments of error in his direct appeal
was that the trial court erred when it failed to suppress his
confession because the confession was the product of an
illegal arrest. He argued that police officers “arrested” him
and took him to police headquarters for questioning and that
the officers lacked probable cause to believe he had com-
mitted the murder. We noted, however, that when Starks
made the confession, he was not under arrest for this murder
and that instead, he had been arrested for driving under the
influence and had been transported to a police station for
booking on several outstanding warrants that the arresting
officer had discovered. Later that day, while Starks was still
in jail based on this arrest, Officers James Wilson and Clyde
Nutsch, neither of whom was the officer who had arrested
Starks for driving under the influence, received a tip that
Starks had been involved in the killing of Wierzbicki. Wilson
and Nutsch discovered that Starks was already in custody,
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STATE v. STARKS
Cite as 294 Neb. 361
and they transported him from the jail to police headquarters
where they questioned him regarding the murder and he made
his confession.
We concluded that Starks’ assignment of error failed because
he was not arrested by Wilson and Nutsch when he was
taken to police headquarters for questioning. We reasoned that
because Starks was already under arrest, “there was no new
arrest, legal or otherwise, [and therefore] his confession was
not the fruit of an illegal arrest, and the trial court did not err in
refusing to suppress the confession.” State v. Starks, 229 Neb.
at 487, 427 N.W.2d at 300.
Starks filed a pro se motion for postconviction relief pursuant
to Neb. Rev. Stat. § 29-3001(4) (Cum. Supp. 2014), generally
alleging ineffective assistance of appellate counsel. Although
Starks had more than one appellate counsel, we adopt the sin-
gular reference to his counsel. In his motion for postconviction
relief, Starks made several assertions that his counsel on direct
appeal, who was different from his trial counsel, failed to
adequately familiarize himself with Starks’ case and that as a
result, Starks was prejudiced by being denied appellate review
of certain purportedly meritorious claims. Starks then set forth
three specific errors that he claimed appellate counsel did not
adequately present in the direct appeal.
Starks first claimed that the trial court had erred by admit-
ting his confession “under an unconstitutional and erroneous
standard.” Starks specifically referred to the trial court’s rejec-
tion of his argument that the police used deception in order
to obtain the confession. At trial, the court determined that if
there was deception, it did not produce a false or unworthy
confession. Starks alleged that his appellate counsel “never
assigned as error and argued that the trial court committed
reversible error by admitting [his] confession under an errone-
ous standard.” Starks alleged that the proper standard was “the
totality of circumstances test.”
Second, Starks claimed that there was prosecutorial miscon-
duct in his trial, because the State allowed its witness, Nutsch,
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to provide false testimony in connection with Starks’ assertion
that his confession was coerced. Starks alleged that at trial, he
testified that Wilson and Nutsch had “used gruesome Polaroid
photos as a form of psychological coercion to get him to con-
fess.” Starks further alleged that Nutsch testified, allegedly
falsely, that the officers had not shown Starks any photographs
and that they did not have any photographs at the time they
interviewed Starks. The trial record shows that Nutsch testified
that it took 24 hours to develop the film photographs taken at
the scene and that the officers interviewed Starks within 24
hours after the murder had happened.
Starks claimed in his postconviction motion that “years
after the trial,” he came into possession of a report in which
a police crime laboratory technician stated that she had taken
seven Polaroid photographs which she had “turned over” to
Nutsch. The relevant portion of the report was attached to
Starks’ postconviction motion. Starks argued that the report
showed that Nutsch had lied when he said that he did not
have any photographs at the time he interviewed Starks.
Starks claimed in his postconviction motion that his coun-
sel on direct appeal provided ineffective assistance when
“counsel never assigned as error and argued that the prosecu-
tion committed reversible error by eliciting false testimony”
from Nutsch.
Third, Starks claimed that at trial, the State did not fully
comply with his discovery request for “all photographs,”
because the State did not provide the seven Polaroid photo-
graphs referenced in the laboratory technician’s report. Starks
alleged that such failure was a violation of Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because
the Polaroid photographs were material to his claim that his
confession was the result of coercion and that they could
have been used to impeach Nutsch’s testimony to the effect
that he did not have any photographs at the time he ques-
tioned Starks. In his postconviction motion, Starks asserted
that counsel in his direct appeal “never assigned as error and
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STATE v. STARKS
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argued prosecutorial misconduct for suppression of requested
Brady material.”
The district court denied Starks’ motion for postconviction
relief without granting an evidentiary hearing. In its order
denying the motion, the court first addressed Starks’ allega-
tion that his appellate counsel failed to adequately familiarize
himself with the case. The court determined that this state-
ment was a conclusory allegation and that Starks had failed to
specify how the outcome would have been different if counsel
had become more familiar with the case.
The court then addressed Starks’ claim that appellate coun-
sel had failed to assert that the trial court applied an improper
standard when it reviewed the legality of Starks’ confes-
sion. The court determined that this claim was without merit,
because the legality of the confession was raised and reviewed
on direct appeal and this court affirmed the trial court’s ruling.
The court further stated that it had reviewed the trial record
and did not find any evidence that Starks’ confession was
obtained by police deception.
The court next addressed Starks’ claim that appellate coun-
sel failed to assert that the State knowingly presented false
testimony, specifically Nutsch’s trial testimony that he did
not possess or show any photographs to Starks during the
interview that resulted in his confession. The court deter-
mined that there was no evidence that Nutsch had testified
falsely or that the State knew or should have known that
Nutsch was giving false testimony. The court reasoned that
although the laboratory technician’s report stated that Polaroid
photographs were given to Nutsch at some point, the report
did not show that Nutsch had the photographs when he
interviewed Starks.
The court finally addressed Starks’ claim that appellate
counsel failed to assert that the State committed a Brady vio-
lation when it did not provide the seven Polaroid photographs
during the discovery process. The court found no merit to
the claim and reasoned that it was logically inconsistent for
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STATE v. STARKS
Cite as 294 Neb. 361
Starks to argue that he had never seen the Polaroid photo-
graphs but that the photographs were material to proving his
claim that the police had coerced his confession by showing
him the Polaroid photographs. The court noted that Starks did
not allege that the photographs were newly discovered excul-
patory evidence.
The district court concluded that the files and records in
Starks’ case affirmatively showed that Starks was entitled to
no postconviction relief. The court therefore denied the motion
without an evidentiary hearing.
Starks appeals.
ASSIGNMENT OF ERROR
Starks generally claims that the district court erred when
it found that there was no merit to each of his claims and
denied his motion for postconviction relief without an eviden-
tiary hearing.
STANDARDS OF REVIEW
[1,2] 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 records and files
affirmatively show that the defendant is entitled to no relief.
State v. DeJong, 292 Neb. 305, 872 N.W.2d 275 (2015). A
defendant requesting postconviction relief must establish the
basis for such relief, and the findings of the district court will
not be disturbed unless they are clearly erroneous. State v.
Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).
ANALYSIS
[3] Starks claims that the district court erred when it denied
his postconviction motion without an evidentiary hearing. We
therefore review standards relating to postconviction relief.
The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001
et seq. (Reissue 2008 & Cum. Supp. 2014), provides that
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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. 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, causing
the judgment against the defendant to be void or voidable.
State v. DeJong, supra.
[4,5] 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 fed-
eral Constitution. State v. DeJong, supra. 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 evi-
dentiary hearing. Id.
[6,7] Starks’ postconviction claims center on the alleged
ineffective assistance provided by his counsel on direct appeal.
A proper ineffective assistance of counsel claim alleges a vio-
lation of the fundamental constitutional right to a fair trial.
Id. 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. State
v. DeJong, supra. To show prejudice under the prejudice com-
ponent of the Strickland test, the defendant must demonstrate
a reasonable probability that but for his or her counsel’s defi-
cient performance, the result of the proceeding would have
been different. State v. DeJong, supra. A reasonable prob-
ability 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.
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Cite as 294 Neb. 361
[8-10] A claim of ineffective assistance of appellate coun-
sel which could not have been raised on direct appeal may
be raised on postconviction review. State v. Nolan, 292 Neb.
118, 870 N.W.2d 806 (2015). When analyzing a claim of inef-
fective assistance of appellate counsel, courts usually begin
by determining whether appellate counsel actually prejudiced
the defendant. Id. That is, courts begin by assessing the
strength of the claim appellate counsel failed to raise. Id.
Counsel’s failure to raise an issue on appeal could be ineffec-
tive assistance only if there is a reasonable probability that
inclusion of the issue would have changed the result of the
appeal. Id.
Starks initially argues that the district court erred when it
determined that his allegation that his appellate counsel failed
to adequately familiarize himself with the case was a con-
clusory allegation and that Starks failed to specify how the
outcome would have been different if appellate counsel had
become more familiar with the case. Starks contends that the
court misread what he describes as “the preamble and introduc-
tion” to his specific claims of ineffective assistance of appel-
late counsel. Brief for appellant at 15. We therefore read this
portion of Starks’ motion for postconviction relief as being,
as he characterizes it, an introduction to his specific claims
of ineffective assistance of appellate counsel rather than as a
separate claim for postconviction relief.
Reading Starks’ postconviction motion in this manner, Starks
alleged that appellate counsel failed to adequately familiarize
himself with the record and that as a result, appellate coun-
sel provided ineffective assistance when he failed to assert
on direct appeal that (1) the trial court applied an improper
standard when it reviewed the legality of Starks’ confession,
(2) the State knowingly presented false testimony by Nutsch
to the effect that he did not possess or show any photographs
to Starks during the interview that resulted in Starks’ confes-
sion, and (3) the State committed a violation under Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
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(1963), when it failed to provide the seven Polaroid photo-
graphs during discovery. The district court rejected each of
these claims of ineffective assistance of appellate counsel, and,
as we discuss below, we agree that these claims did not merit
an evidentiary hearing or relief.
First, Starks alleged that appellate counsel failed to claim
that the trial court applied an improper standard when it
reviewed the legality of his confession. Contrary to this argu-
ment, in Starks’ direct appeal to this court, State v. Starks, 229
Neb. $82, 427 N.W.2d 297 (1988), one of the assigned errors
was that the trial court erred when it failed to suppress his con-
fession. Although on direct appeal Starks did not specifically
claim that the trial court used an improper standard, he argued
that the trial court erred when it refused to suppress the confes-
sion, and this court fully examined this ruling.
Having reviewed the record, we agree with the district
court’s assessment that the trial record shows no error by the
trial court in its consideration and rejection of Starks’ chal-
lenge to his confession. In his postconviction motion, Starks
contends that the trial court did not consider the evidence he
presented to show that the police used deception and coercive
tactics to obtain his confession. Contrary to this contention,
the trial record shows that Starks testified that the police
showed him gruesome photographs from the crime scene and
he asserted at trial that the police used such tactics to overbear
his will and force a confession. The record also shows that the
State presented evidence to counter Starks’ claims of an invol-
untary confession, including testimony by the police officer
who obtained the confession.
After considering the evidence, the trial court rejected
Starks’ claim that the confession should be suppressed as hav-
ing been coerced. Contrary to Starks’ claim, the record does
not show that the trial court failed to properly consider Starks’
claims; instead, it shows that the trial court rejected his claim
after considering the evidence. Furthermore, counsel on direct
appeal challenged the legality of the confession. By its nature,
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consideration of such challenge necessarily incorporated an
assessment of the propriety of the trial court’s legal analysis.
We determined on direct appeal that “the trial court did not err
in refusing to suppress the confession.” State v. Starks, 229
Neb. at 487, 427 N.W.2d at 300. We therefore determine that
the district court did not err when it rejected Starks’ postcon-
viction claim that his direct appeal counsel provided ineffec-
tive assistance by failing to raise issues regarding the legality
of his confession.
Starks next asserts that appellate counsel failed to claim that
the State engaged in prosecutorial misconduct by knowingly
presenting false trial testimony by Nutsch to the effect that he
did not possess or show any photographs to Starks during the
interview that resulted in Starks’ confession. Starks’ argument
in this respect is based on his alleged recent discovery of the
laboratory technician’s report in which it was stated that seven
Polaroid photographs were given to Nutsch. The district court
rejected this claim on the basis that the report did not show
that the technician had given the Polaroid photographs to
Nutsch before he interviewed Starks. We conclude that even if
it could be inferred from the report that Nutsch had been given
the Polaroid photographs before the interview, the district
court properly rejected this claim.
[11] We have stated that prosecutorial misconduct encom-
passes conduct that violates legal or ethical standards for
various contexts because the conduct will or may undermine
a defendant’s right to a fair trial. State v. Custer, 292 Neb. 88,
871 N.W.2d 243 (2015).
Fundamental to Starks’ claim surrounding allegedly false
testimony by Nutsch are Starks’ testimony at trial that he
was shown gruesome photographs and the allegation in his
postconviction motion that he was shown “gruesome Polaroid
photos as a form of psychological coercion.” At trial, Starks
in fact testified that he was shown gruesome photographs,
which were in evidence, but he did not state that they were
Polaroid photographs. The testimony of Nutsch at trial focused
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on film photographs as distinguished from Polaroid photo-
graphs, and he stated that he did not show Starks photographs
at the time of the interview because the “[c]rime Lab had the
film, and it takes 24 hours for the film to turn around and
come back and be developed and printed.” Read broadly,
the records and files show that although there was a conflict
in the testimony as to whether photographs were shown to
Starks, the discrepancy at trial was limited to whether film
photographs were shown to Starks. The conflict was devel-
oped at trial. Even giving Starks the benefit of the assumption
that he was shown gruesome photographs, we find there is no
indication that the testimony of Nutsch, which was addressed
to film photographs, was inaccurate or that the prosecutor
knowingly presented false testimony. Given the context of
the trial testimony surrounding the showing of photographs,
we are not persuaded that Starks was denied his right to
a fair trial.
The trial court rejected Starks’ argument that his confes-
sion was coerced, and Starks has not shown how the exis-
tence of the Polaroid photographs would have changed the
trial court’s conclusion. In light of the record presented to the
court in the original trial, we determine that the district court
did not err when it rejected Starks’ postconviction claim that
appellate counsel provided ineffective assistance by failing to
claim that the State engaged in prosecutorial misconduct by
knowingly presenting false testimony by Nutsch.
[12] Finally, Starks alleged in his postconviction motion
that appellate counsel failed to claim that the State commit-
ted a violation under Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963), when it failed to pro-
vide the Polaroid photographs during the discovery process.
We have stated that there are three components of a true
Brady violation: “‘“The evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
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ensued.”’” State v. Scott, 284 Neb. 703, 719, 824 N.W.2d 668,
685 (2012). As explained below, we find no Brady violation,
and therefore, appellate counsel was not deficient in failing to
raise the Brady issue.
The Polaroid photographs are not in the record, and in any
event, Starks has failed to demonstrate how their contents
would have affected the outcome of this case. The report
attached to the motion for postconviction relief states: “A total
of seven (7) color polaroid photos were also taken by [the labo-
ratory technician] and turned over to Officer NUTCH [sic].”
The report does not otherwise directly disclose the contents of
the Polaroid photographs. However, the report describes some
photographs as depicting the driveway area, an air condition-
ing unit, and several shoe impressions. It is not clear that these
mundane photographs were contained in the Polaroid photo-
graphs or other photographs.
Although we cannot infer—nor does Starks suggest—that
the Polaroid photographs showed anything exculpatory for use
by the accused, the report itself may have served to impeach
the testimony of Nutsch, who claimed to have had no photo-
graphs at the time he interviewed Starks. But, as explained
below, the record shows that the failure to produce this alleged
Brady material was not prejudicial.
Even if the Polaroid photographs had been produced and
their content was “gruesome,” they could be no more grue-
some than the enlarged photographs that were in fact received
in evidence at the trial, explicitly showing the victim’s blood-
ied body, and which, according to Starks, caused him to
confess. At trial, Starks referred to these photographs as hav-
ing overborne his will and caused him to confess. More and
cumulative photographs, even if gruesome, would not have
assisted Starks. Furthermore, at trial, Nutsch stated he had no
photographs at the time he interviewed Starks. The accuracy
of this testimony was directly challenged by the testimony of
Starks, who referred to the photographs in evidence and testi-
fied that these were the photographs Nutsch had shown him
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which caused him to confess. So, the persuasive value of the
Polaroid photographs is absent and the credibility of Nutsch
was in fact already made an issue at trial. The report and
Polaroid photographs are not true Brady material, and Starks
was not prejudiced by the absence of the report and Polaroid
photographs from the trial. We therefore determine that the
district court did not err when it rejected Starks’ postconviction
claim that appellate counsel provided ineffective assistance by
failing to raise the alleged Brady violation.
CONCLUSION
We conclude that the district court did not err when it
determined that a review of the records and files affirmatively
showed that Starks’ postconviction claims were without merit
and did not entitle him to an evidentiary hearing. We therefore
affirm the district court’s order which denied Starks’ motion
for postconviction relief.
A ffirmed.