- 526 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. MARTINEZ

Cite as 302 Neb. 526

State of Nebraska, appellee, v. 

Larry G. Martinez, 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 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.

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 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 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 postconviction relief, the defendant must allege facts which, if proved, 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/12/2019 09:07 AM CDT
- 527 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

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 defendant’s rights under the Nebraska or federal Constitution.

7. 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.

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 element of first degree murder means not suddenly or rashly, and requires 

the State to prove that the defendant considered the probable consequences 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 appropriate 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.
- 528 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

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 roommates that he was “going to kill that fucking bitch,” referring 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 gunshot 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 window, Blake saw Martinez entering his vehicle and driving away.
- 529 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

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 conclusively 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 statements 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 manslaughter. Following a jury trial, however, Martinez was convicted 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 hearing was held at which two defense experts testified that 

Martinez was incompetent, with one of those experts testifying that because Martinez’ incompetency was based upon 
- 530 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. MARTINEZ

Cite as 302 Neb. 526

his intellectual functioning, it was unlikely that his competency 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 appropriately 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 intellectual 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 competent. See id.

Motion for Postconviction Relief.

Martinez filed a motion for postconviction relief, asserting 

ineffective assistance of counsel and requesting an evidentiary hearing. Relevant to this appeal, Martinez alleged that 

his trial counsel was ineffective (1) for not raising his mental 
- 531 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

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 involuntary 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 evidentiary 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 provided deficient representation, Martinez could not demonstrate 

he was prejudiced.

Martinez timely appealed.

ASSIGNMENTS OF ERROR

Martinez assigns, restated, that the trial court erred by denying him postconviction relief without an evidentiary hearing 

on his claims that his counsel was ineffective for not raising 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 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. State v. 

Tyler, 301 Neb. 365, 918 N.W.2d 306 (2018).

ANALYSIS

Legal Standards.

Martinez contends that the district court erred by dismissing his claims of ineffective assistance of counsel without 
- 532 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

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 counsel 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 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 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 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. 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, causing 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 infringement 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 
- 533 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

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 hearing. 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 incorrect, 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 deficient 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 introduced 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 statements to be involuntary and therefore would have suppressed 
- 534 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

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 considered 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 enforcement 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 handcuffs 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 minutes. 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 emphasis 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 
- 535 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

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 without 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 precluded 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 ability 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 competent, as well as by several lay witnesses who testified to 
- 536 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. MARTINEZ

Cite as 302 Neb. 526

their observations and interactions with Martinez which suggested competency.

Even if counsel should have investigated Martinez’ mental 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 necessary 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 
- 537 -

Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

STATE v. MARTINEZ

Cite as 302 Neb. 526

mental capacity could have overcome this evidence and produced 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 evidentiary 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 hearing, and thus affirm.

Affirmed.

Freudenberg, J., not participating.