- 33 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

State of Nebraska, appellee, v.

Malik M. Stelly, appell

___ N.W.2d ___

Filed September 13, 2019. No. S-18-025.

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.

Nebraska Supreme Court Online Library

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

12/06/2019 09:07 AM CST
- 34 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

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 
- 35 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

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.
- 36 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

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: Shell

R. Stratman, Judge. Affirm

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, Pap

Freudenberg, J

Stacy, 

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. Investigat

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 
- 37 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

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 
- 38 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

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 Suppr

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, [2017,] 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.
- 39 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

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, 2017, 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 
- 40 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

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. Tria

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 

1 State v. Kleinberg, 228 Neb. 128, 131, 421 N.W.2d 450, 453 (1988).
- 41 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

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.
- 42 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

(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

[1] 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

[2] 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 

2 State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018).

3 Id.

4 State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
- 43 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

court’s admission of photographs of a victim’s body for abuse 

of discretion.5

[3] 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 Suppr

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.

[4] 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 items to be 

seized with reasonable certainty and little chance of confusion 

or uncertainty.9

5 Id.

6 State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).

7 Id.

8 See, State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993); State v. 

Walters, 230 Neb. 539, 432 N.W.2d 528 (1988).

9 See 79 C.J.S. Searches § 243 (2017). See, also, State v. Groves, 239 Neb. 

660, 477 N.W.2d 789 (1991).
- 44 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

Stelly’s argument in support of this assignment of error 

is limited. He contends only that the district court erred in 

applying the rationale of Kleinberg10 to conclude the affidavit 

cured any deficiency in the warrant. We limit our analysis 

accordingly.

[5] Kleinberg 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.”11 In Kleinberg, police officers had been informed the 

defendant had marijuana in his vehicle and they applied for a 

warrant to search the vehicle. The supporting affidavit sought 

to search the vehicle, but the warrant authorized a search of 

the defendant’s person. The police served the warrant on the 

defendant and then searched his vehicle, but did not search his 

person. Marijuana was found in the vehicle, and the defendant 

was arrested. The defendant moved to suppress the evidence, 

arguing the warrant did not authorize a search of his vehicle. 

The trial court overruled the motion to suppress, and we 

affirmed. In doing so, we reasoned that the warrant referred to 

and was accompanied by the affidavit discussing the search of 

the vehicle and that the information in the affidavit could “be 

used to cure the defect in the warrant resulting from the error 

of the scrivener.”12

Here, as in Kleinberg, the warrant referred to and was 

accompanied by an affidavit. And although both the warrant 

and the affidavit misidentified the ZTE cell phone as the item 

to be searched, a review of the information in the supporting 

affidavit demonstrates the reference to the ZTE cell phone was 

an inadvertent scrivener’s error, as it is clear the officers were 

seeking a warrant to search the LG cell phone found lying 

in the street near Branch’s body. The affidavit reads, “The 

10 Kleinberg, supra note 1. 

11 Id. at 131, 421 N.W.2d at 453.

12 Id. at 134, 421 N.W.2d at 454.
- 45 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

telephone was found in the street at the scene of a homicide 

and seized as evidence.” Additionally, it states:

An LG model . . . 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.

We conclude that the detailed information in the supporting 

affidavit cured any defect in the warrant resulting from the 

scrivener’s error in misidentifying the ZTE cell phone as the 

item to be searched. Moreover, reading the information in the 

affidavit and the warrant together, the item to be searched was 

described with sufficient particularity to allow the executing 

officer to ascertain and identify the item to be searched with 

reasonable certainty. Stelly’s argument to the contrary is without merit, and the district court did not err in overruling the 

motion to suppress.

2. Photographs of Vic

Stelly argues the trial court improperly admitted eight photographic exhibits over his objections that some were overly 

graphic and redundant and that others were overly gruesome. 

Although Stelly did not expressly object to any of the photographs on Neb. Evid. R. 40313 grounds, his objections were 

treated as seeking exclusion on grounds the photographs, even 

if relevant, were gruesome and cumulative and thus were 

more prejudicial than probative. He makes the same argument 

on appeal.

In response to Stelly’s objections, the district court examined the photographs outside the presence of the jury and 

asked the State to explain the relevance of each. The court also 

13 Neb. Rev. Stat. § 27-403 (Reissue 2016).
- 46 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

explored with counsel whether any of the photographs were 

duplicative and whether other photographs existed showing 

the same areas of Branch’s body after he had been “cleaned 

up.” Summarized, the State explained that more than 200 photographs had been taken and that although some of the 8 being 

offered were similar, they were taken from different angles 

and distances to depict different areas of Branch’s body at different points during the investigation and to highlight different 

things of evidentiary significance. The court overruled Stelly’s 

objections and admitted all eight photographs.

“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.”14 On appeal, the State does not dispute 

that the photographs depicting Branch’s body after the shooting were gruesome, but it points out that this does not render 

them inadmissible.

[6,7] We have often observed that gruesome crimes produce 

gruesome photographs,15 but if the State lays proper foundation, photographs that illustrate or make clear a controverted 

issue in a homicide case are admissible, even if gruesome.16 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.17

The photographs taken at the scene of the crime show 

Branch’s body as it was discovered, lying on the sidewalk in 

a pool of blood. The photographs depict the nature, extent, 

and location of the multiple bullet wounds, and illustrate the 

spatial relationship of Branch’s body to the spent shell casings 

discovered near and under his body. The photographs taken 

14 Dubray, supra note 4, 289 Neb. at 218, 854 N.W.2d at 599.

15 Dubray, supra note 4.

16 Id.

17 Id.
- 47 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

during the autopsy show portions of Branch’s body not otherwise visible in the photographs taken at the scene, including a 

photograph of a projectile in his left eye.

[8] We have recognized that photographs can also provide 

“‘visual proof from which a jury could reasonably infer that 

the homicide was committed with “deliberate and premeditated malice.”’”18 Here, in addition to showing the condition 

of the body and the nature and extent of the wounds, the 

photographs tended to establish malice or intent in that they 

showed multiple shots were fired at Branch’s head. We conclude that although the photographs were gruesome, their probative value was not substantially outweighed by the danger of 

unfair prejudice.

Stelly also objected that some of the four photographs from 

the crime scene were unnecessarily cumulative, in that they 

showed some of the same bullet wounds. We pause to note that 

his brief on appeal argues that some of the autopsy photographs 

should also have been excluded as cumulative, but because he 

did not object to the autopsy photographs on that basis at trial, 

he has not preserved the issue for appellate review.19 We thus 

address only Stelly’s argument that the four photographs of the 

crime scene were needlessly cumulative.

In that regard, he argues that some of the same bullet 

wounds are visible in more than one crime scene photograph. 

While he is correct, that is due in large part to the sheer number of wounds to Branch’s head and body. Moreover, Stelly’s 

argument ignores the different evidentiary significance of the 

four photographs. Three of the photographs depict entirely different areas of Branch’s body and clothing, and although there 

are two photographs depicting the injuries to the right side of 

Branch’s head, one of the photographs was taken from an angle 

that shows the proximity of several shell casings not visible in 

the other photograph.

18 State v. Ryan, 226 Neb. 59, 87, 409 N.W.2d 579, 596 (1987).

19 State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003) (objections not presented to and passed upon by trial court will not be considered on appeal).
- 48 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

[9,10] Rule 403 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.20 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.21

Here, we find the court admitted the photographs for a 

proper purpose and did not abuse its discretion in concluding that multiple photographs of the same wounds were not 

unfairly prejudicial.

3. Ineffective Assi

of Counse

[11] Stelly asserts a total of 18 different claims of ineffective assistance of trial counsel. Generally, to prevail on a 

claim of ineffective assistance of counsel under Strickland v. 

Washington,

22 the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.23 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.24 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.25

20 Dubray, supra note 4, 289 Neb. at 219, 854 N.W.2d at 600.

21 See State v. Baltimore, 236 Neb. 736, 463 N.W.2d 808 (1990), disapproved 

on other grounds, State v. Messersmith, 238 Neb. 924, 473 N.W.2d 83 

(1991).

22 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

23 State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).

24 Id.

25 Id.
- 49 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

Summarized, Stelly’s brief asserts his trial counsel was ineffective in (1) failing to object when the trial court received 

exhibit 103, which had never been offered; (2) failing to object 

to evidence of and argument concerning Branch’s personal attributes and good qualities; and (3) failing to adequately investigate or present evidence in 16 different instances. We address 

each claim in turn, but first we set out the law that governs our 

analysis of ineffective assistance claims on direct appeal.

[12,13] It is well settled that 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.26 In State v. Filholm,

27 we explained that to raise a claim 

on direct appeal that trial counsel was ineffective, a defendant’s 

brief must specifically set forth how counsel’s performance 

was deficient. But we clarified that the brief need not also 

allege prejudice:

Although our case law makes clear that specific allegations of prejudice are required within the context of 

postconviction relief, we view such a requirement on 

direct appeal as a waste of time and resources. As we 

have noted, the trial record on appeal is devoted to 

issues of guilt or innocence, not counsel’s performance. 

Thus, to require an appellant to allege prejudice from 

ineffective assistance on direct appeal would require him 

or her to allege facts in detail that are likely not within 

the appellate record or known to the defendant without further inquiry. . . . We therefore see no justification for requiring an appellant to allege prejudice when 

claiming ineffective assistance of trial counsel on direct 

appeal. That said, we emphasize that in the context of 

direct appeal, like the requirement in postconviction 

26 Id.

27 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
- 50 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

proceedings, mere conclusions of fact or law are not 

sufficient.28

[14] 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.29

[15-17] 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.30 The determining factor 

is whether the record is sufficient to adequately review the 

question.31 We have said the record is sufficient 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.32 We have also said that 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.33

With this framework in mind, we consider Stelly’s various 

claims that his trial counsel performed deficiently.

(a) Exhibit 103

During trial, exhibit 103 was received into evidence over 

Stelly’s objection, despite the fact that the State failed to 

28 Id. at 770-71, 848 N.W.2d at 578-79.

29 State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).

30 Id.; Munoz, supra note 23.

31 Id.

32 Munoz, supra note 23.

33 See State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019).
- 51 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

formally offer exhibit 103 into evidence. The exchange at trial 

occurred as follows:

[The State]: Judge, we’re going to offer Exhibits 94 

through 100 and then 101, 102, 104 and 106.

[Defense counsel]: No objection to 94 through 102. 

Our objection is to 103 and 104. No objection to 106.

THE COURT: 94 through 102 are received. The objections are noted on 103 and 104, those will be received. 

And 106 is received.

Stelly argues that although his trial counsel objected to exhibit 

103, his trial counsel performed deficiently by failing to also 

object to the court’s receipt of exhibit 103 on the ground that 

the State had never offered it. Both Stelly and the State agree 

that the record is sufficient on appeal to address this claim, and 

we agree. We therefore turn to the merits.

The State argues that trial counsel was not deficient in failing to object to the court’s receipt of exhibit 103 because trial 

counsel was aware, based on prior discussions outside the 

presence of the jury, that the State’s failure to formally offer 

exhibit 103 was inadvertent and easily cured. This is supported 

by the record.

Prior to the formal offer of the string of exhibits identified 

in the above exchange, counsel for both parties informed the 

court, outside the presence of the jury, that defense counsel 

intended to object to exhibits 103 and 104 as cumulative and 

unfairly prejudicial. After some discussion, the court informed 

counsel at sidebar that it would “allow 103 and 104 since they 

are different.”

The formal offer of exhibits occurred after this sidebar. 

The record shows that defense counsel was aware the State 

intended to offer exhibit 103 and was further aware the court 

intended to receive the exhibit over trial counsel’s objection. 

Under such circumstances, if trial counsel had objected to 

the court’s receipt of exhibit 103 despite the State’s failure to 

offer it, the State would have easily corrected the oversight. In 

other words, with or without the objection that Stelly claims 

his counsel should have made, the exhibit would have been 
- 52 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

received. Stelly can show no prejudice, and his first claim of 

ineffective assistance of trial counsel has no merit.

(b) Evidence of Personal 

Attributes of Victim

Stelly claims his trial counsel performed deficiently by failing to object to testimony and argument regarding Branch’s 

general good character and his diminished mental capacity. 

Both Stelly and the State contend the record is sufficient on 

appeal to resolve this claim of ineffective assistance of counsel. 

We agree.

At trial, two of the State’s witnesses—Branch’s brother and 

Branch’s girlfriend—testified about Branch’s personal attributes. The following testimony was adduced without objection 

from Branch’s brother:

[Branch] was very helpful to just about everybody he 

came in contact with. You know, friends, family. I mean, 

you couldn’t really ask for a better person than [Branch] 

because — he was mentally challenged. He had — he was 

born with water on his brain, but he was still just a lovable person, you know. We looked at him as one of God’s 

angels because he wasn’t supposed to make it a year after 

his birth. He was supposed to die. He made it all the way 

to 29.

Branch’s brother also testified that Branch “had the mind of a 

kid instead of an adult. So he was 29, he was probably 14 in 

— in his head he was 14. He was still a kid.” He explained that 

Branch attended special education classes while in school.

Branch’s girlfriend also testified to Branch’s personal attributes without objection. She stated that Branch “got along very 

well with everybody. He was very helpful, very kind, especially very kind to me.” She described him as very loving and 

caring, but with an IQ that was lower than that of the average 

person.

During closing arguments, the prosecutor summarized the 

testimony of Branch’s brother and girlfriend, without objection 

from trial counsel:
- 53 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

You also heard from . . . Branch’s brother . . . .

He described [Branch] as, quote, one of God’s angels. 

He related to you that [Branch] shouldn’t have made it 

past one year of age because he was born with water on 

the brain. As a result of that condition, he forever — or at 

the point of his death, had the mentality of a 14-year-old. 

He told you that [Branch] went to North High School and 

graduated, but he required special education during his 

time there.

He described [Branch] as helping everyone and would 

not drive, but he said he would walk around town, walking as he was on the early morning hours of January 11th, 

2017, when he was trying to walk home from [Branch’s 

girlfriend’s] house to his family’s house. He didn’t have a 

car. He relied on walking.

. . . .

. . . [Branch’s girlfriend] told you that [Branch] was 

very kind. He wasn’t of the highest IQ, in her opinion, but 

they were able to communicate. He treated her well, and 

she was dating him. . . .

. . . .

. . . It’s time to hold [Stelly] accountable. He murdered 

. . . Branch, who is a stable man simply trying to get 

home at the end of the night. He was gunned down in the 

street. His body was left there, and [Stelly] fled because 

[Stelly] is the one who perpetrated it. He needs to be held 

accountable.

[18] 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.34 But here, it cannot be said that all the evidence 

of Branch’s personal attributes was irrelevant. Evidence that 

he did not drive due to his diminished mental capacity tends 

34 Dubray, supra note 4.
- 54 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

to explain why he was out walking at the time he was shot, 

and it was relevant for that purpose. But the related testimony 

and argument that Branch was kindhearted and had overcome 

obstacles in his life were relevant neither to the facts the State 

had to prove nor to any defense raised by Stelly.

[19] That said, an appellate court gives defense counsel’s 

decision not to object to a prosecutor’s conduct or remark a 

strong presumption of reasonableness.35 Counsel may have 

made a sound tactical decision in not objecting, and “‘[i]t is 

not beyond comprehension to envision an instance where a 

surely winnable objection may still hurt the defense in the eyes 

of the jury.’”36

In this case, defense counsel agreed during his closing 

argument that this was “a horrible crime” and remarked: “It’s 

senseless. His poor family.” These remarks suggest counsel 

may have made a tactical decision not to object to evidence 

of Branch’s personal attributes because, even if the objections were winnable, he decided it was better for the jury to 

see Stelly as sympathetic to the loss of an innocent life, while 

denying that he was the perpetrator.

Even if counsel’s failure to object was not a tactical decision, 

we find this record is sufficient to conclude that Stelly was 

not prejudiced by counsel’s alleged deficient performance.37

Our analysis in State v. Iromuanya38 and State v. Dubray39

is instructive.

In Iromuanya, we considered whether defense counsel was 

ineffective for failing to object to the prosecutor’s improper 

statements and questions. During opening statements, the prosecutor remarked about one victim’s accomplishments in collegiate soccer and the other victim’s academic achievements. 

35 See State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).

36 Id. at 813, 806 N.W.2d at 423, quoting Ayers v. State, 802 A.2d 278 (Del. 

2002).

37 See Hibler, supra note 33.

38 Iromuanya, supra note 35.

39 Dubray, supra note 4.
- 55 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

The prosecutor also asked the surviving victim to recall for 

the jury how he learned of the other victim’s death. We disapproved of the prosecutor’s improper statements and question, 

but we found the defendant was not prejudiced by the deficient conduct. We reasoned the trial court had orally instructed 

jurors before trial that attorney statements and arguments were 

not evidence. And we noted that the statements represented 

short moments in a long trial during which many other witnesses testified about the critical issue in the case—whether 

the defendant had shot at the victims with the intent to kill. 

Further, we emphasized that the trial court’s written instructions informed the jurors that they must not decide the case 

based on sympathy or prejudice. We therefore concluded that 

the prosecutor’s improper statements and question did not 

result in prejudicial error.

In Dubray, we considered whether defense counsel was deficient for failing to object to improper remarks the prosecutor 

made, during closing arguments, about the victim’s personal 

qualities and attributes:

“Now, I don’t — never knew [the victims]. These are 

two beautiful human beings. They had love in their heart, 

they had goals, they had aspirations, they had children, 

they had all of those things in life that people could 

want. Nothing was perfect but is it ever for any of us? 

And to have their lives taken from them so savagely, so 

brutally at 22 years old. And [one victim is] never going 

to his boy’s ball games. And [the other victim will] never 

see her kids again. ‘Take care of my baby.’ That’s what 

you are supposed to be doing. That’s what she’s supposed to be doing. They were killed for no reason. He 

took their lives and the evidence shows that he did so 

brutally with premeditation.

“Find him guilty of two counts of first degree murder 

and use of a weapon. The law requires it. And justice 

demands it. Thank you.”40

40 Id. at 220, 854 N.W.2d at 600.
- 56 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

We found this argument was improper, but concluded the 

defendant could not show prejudice from his counsel’s failure to object. We found it significant that the trial court had 

admonished the jury not to let sympathy or passion influence 

its verdict and also had instructed that the attorneys’ statements were not evidence. Moreover, we noted that the evidence 

against the defendant was “strong” and that, viewing the trial 

as a whole, we could not find the defendant had been deprived 

of a fair trial because of the prosecutor’s remarks.41

We reach a similar conclusion here. Even assuming trial 

counsel performed deficiently by failing to object to at least 

some of the testimony and argument about Branch’s personal 

traits, Stelly cannot show he was deprived of a fair trial or 

demonstrate a reasonable probability that but for counsel’s 

deficient performance, the result of the proceeding would have 

been different. Here, as in Iromuanya42 and Dubray, the testimony and argument regarding the personal attributes of the 

victim were a small part of an otherwise lengthy trial in which 

there was strong evidence of the defendant’s guilt. Moreover, 

the trial court admonished the jury not to let sympathy or 

prejudice influence its decision and also instructed the jury that 

statements, arguments, and questions of the lawyers for the 

State and the defendant were not evidence.

We conclude the record affirmatively shows that Stelly 

cannot demonstrate he was prejudiced by any deficient performance of his trial counsel in failing to object to testimony 

and argument regarding the personal attributes of Branch. 

This claim of ineffective assistance of trial counsel is without merit.

(c) Failure to Investigate

Stelly asserts his trial counsel was ineffective in failing 

to independently investigate certain defenses and failing to 

interview or question certain witnesses. He argues generally 

41 Id. at 228, 854 N.W.2d at 605.

42 Iromuanya, supra note 35.
- 57 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

that had trial counsel done so, he would have discovered or 

adduced evidence helpful to Stelly’s defense. Stelly’s brief sets 

out 16 such claims, which we summarize and number for ease 

of reference:

(1) Trial counsel failed to consult with or call as a witness 

an expert on the ShotSpotter system. Such an expert would 

have testified that the ShotSpotter equipment recorded two 

separate shootings in two different locations at approximately 

2:37 a.m. on January 11, 2017, rather than one shooting in the 

area of 3615 Laurel Avenue.

(2) Trial counsel failed to investigate or subpoena Carrie 

Crook as a witness. Crook would have testified that, contrary 

to the State’s prosecution theory, Stelly did not borrow a PT 

Cruiser from White during the month of January 2017, but 

continued to drive his 1985 Chevy Caprice. Crook would 

have further testified that White loaned the PT Cruiser to 

many people.

(3) Trial counsel failed to investigate video from a clothing store that would have shown Stelly was not driving a PT 

Cruiser on January 10, 2017.

(4) Trial counsel failed to consult with or call as a witness 

an independent expert in the field of ballistics upon learning 

that the State’s ballistics expert could not conclusively determine whether the bullets recovered were fired from the same 

firearm. An independent ballistics expert would have testified 

that the bullets were fired from more than one firearm and 

would support a conclusion that some bullets were planted at 

the scene.

(5) Trial counsel failed to investigate the source of calls to 

White’s cell phone from two specific telephone numbers which 

would have revealed that officers called White’s cell phone 

themselves after illegally searching the LG cell phone found 

near Branch’s body without a warrant.

(6) Trial counsel failed to obtain Stelly’s clothing “as seen in 

[a convenience store] video,” which clothing was “available” 

to trial counsel and would have disproved the State’s theory 
- 58 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

that Stelly either hid or destroyed the clothing he was wearing 

at the time of the shooting.43

(7) Trial counsel failed to obtain the recording of a call to 

the 911 emergency dispatch service to report the shooting. 

Stelly claims the recording would have demonstrated that one 

or more officers testified falsely as to the time they arrived at 

the crime scene.

(8) Trial counsel failed to investigate the circumstances of 

a second crime scene that was being processed on January 

11, 2017, as testified to by a technician who testified that 

she was “working that day and responding to another crime 

scene, but was asked to drop off some scanning equipment to 

a homicide investigation” in the area of 3615 Laurel Avenue. 

Further investigation would have revealed that shell casings 

or bullet fragments allegedly found at the scene of Branch’s 

shooting came from the other crime scene being processed by 

the technician.

(9) Trial counsel failed to investigate or ask whether the 

State’s witnesses who lived in the area of the shooting, but not 

directly on Laurel Avenue, believed they heard shots from two 

different shootings.

(10) Trial counsel failed to consult with and call as a witness an independent DNA expert who, upon comparing the 

DNA swabs taken from inside the PT Cruiser (which were not 

submitted for testing) with known samples taken from Stelly, 

would have testified that Stelly’s DNA was not found on any 

surfaces or objects inside the PT Cruiser.

(11) Trial counsel failed to consult with and call as a witness an independent fingerprint expert who, upon analyzing 

the latent fingerprint evidence allegedly obtained by the officers and technicians who testified for the State, would have 

testified that Stelly’s fingerprints were not present on the surfaces claimed by the technicians.

(12) Trial counsel failed to consult with and call as a witness an independent cell phone expert who, upon analyzing 

43 Brief for appellant at 29.
- 59 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

the LG cell phone found near Branch’s body, would have testified that the data officers purportedly extracted from the LG 

cell phone was not in fact present on it and that one or more 

officers manufactured cell phone evidence. Such expert would 

also have testified that officers sent and received text messages 

and voice calls using the LG cell phone, but testified falsely 

and failed to disclose this fact to trial counsel, the trial court, 

and the jury.

(13) Trial counsel failed to elicit testimony or obtain and 

introduce 911 records that would have demonstrated that the 

times of the 911 calls made by two individuals disprove the 

officers’ testimonies as to the timeline of the shootings on 

January 11, 2017. Such testimony would have demonstrated 

that the officers changed Branch’s time of death from the 

actual time, approximately 11 p.m. on January 10, to the time 

testified to at trial, approximately 2:37 a.m. on January 11.

(14) Trial counsel failed to elicit testimony or obtain and 

introduce Omaha Fire Department records that would have 

demonstrated that the arrival times of the fire department paramedics disprove the officers’ testimony as to the timeline of the 

shootings on January 11, 2017.

(15) Trial counsel failed to elicit testimony from all the 

resident witnesses as to their best estimates of the time of 

night they heard shots and saw the PT Cruiser. Said testimony 

would have disproved the officers’ testimony as to the timeline 

of the shootings on January 11, 2017. Such testimony would 

have demonstrated that officers changed Branch’s time of 

death from the actual time, approximately 11 p.m. on January 

10, to the time testified to at trial, approximately 2:37 a.m. on 

January 11.

(16) Trial counsel failed to ask questions of the State’s witnesses that would have revealed a break in the chain of custody 

of the shell casings and bullet fragment evidence allegedly 

recovered at the scene of the shooting and supported a defense 

theory that officers planted evidence from the other crime 

scene being processed on January 11, 2017, by a technician.
- 60 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

Stelly suggests the record is insufficient to resolve any 

of these 16 claims on direct appeal. The State agrees and 

addresses all 16 claims collectively in a single sentence, suggesting they are “better left for postconviction review.”44 But 

on direct appeal, our appellate review of ineffective assistance 

claims requires more than just noting the claims and postponing consideration for another day.

An appellate court is required to consider whether the defendant has adequately alleged a claim of ineffective assistance,45

and if so, must then consider whether the record on appeal is 

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.46 In the future, we encourage all parties to address 

these considerations in their appellate briefing.

We have considered Stelly’s claims in light of the record 

on appeal. As we explain below, we conclude that some of his 

claims were insufficiently pled. Of those claims that were sufficiently pled, we conclude some are affirmatively refuted by 

the record and others cannot be resolved on direct appeal.

(i) Record Affirmatively Refutes 

Claims 5, 6, 9, and 15

a. White’s Cell Phone, Claim 5

Stelly claims that if an investigation had been undertaken, 

counsel would have discovered that police officers called 

White’s cell phone after “illegally” searching Stelly’s LG cell 

phone “without a warrant.”47 As noted earlier in our analysis of Stelly’s motion to suppress, the search of his LG cell 

phone was pursuant to a valid warrant. Because there was no 

illegal search of Stelly’s LG cell phone, the entire premise 

44 Brief for appellee at 19.

45 See, Manjikian, supra note 29; Filholm, supra note 27.

46 See Hibler, supra note 33.

47 Brief for appellant at 29.
- 61 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

of this claim fails. There is no merit to this claim of ineffective assistance.

b. Clothing From Video, Claim 6

Stelly claims the clothes he was wearing could be “seen”48

in a convenience store video taken the night of the murder, 

and he alleges trial counsel was deficient in not obtaining that 

clothing to rebut the State’s theory at trial that Stelly either 

hid or destroyed the clothing he was wearing the night of 

the murder.

The convenience store video is a part of the record, and we 

have reviewed it. In the video, the PT Cruiser can be seen as it 

proceeds down the roadway, but neither the occupants inside, 

nor their clothing, are plainly visible. Because the video does 

not show the clothing Stelly was wearing, the record affirmatively refutes this allegation of deficient performance.

c. Questions About Two 

Shootings, Claim 9

At trial, the State called several witnesses who lived in the 

area of the shooting, but not on Laurel Avenue. Each testified 

to hearing multiple gunshots in the early hours of January 11, 

2017. They testified that they heard between four and eight 

shots fired, and each described the gunshots as rapidly occurring, one right after the other.

Stelly alleges his trial counsel was deficient because he 

failed to inquire whether these lay witnesses believed the 

shots were from “two different shootings.” 49 But he does not 

suggest any of these witnesses had special training or knowledge in ballistics or were otherwise capable of differentiating the source of bullets based on their sound. As such, any 

question seeking to elicit an opinion from these witnesses on 

whether the shots were coming from more than one shooting 

would have been objectionable. Because counsel cannot be 

48 Id.

49 Id. at 30.
- 62 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

deficient for failing to ask a plainly objectionable question, 

this claim is without merit.

d. Testimony of Timeline From 

Neighborhood Witnesses, 

Claim 15

Stelly claims his trial counsel failed to elicit testimony from 

witnesses regarding their “best estimates of the time”50 when 

they heard shots and saw the PT Cruiser. He claims that if 

counsel had done so, he would have obtained information that 

the shooting occurred at 11 p.m. on January 10, 2017, contradicting the State’s evidence that the shooting occurred at 2:37 

a.m. on January 11.

We conclude the record affirmatively refutes this claim of 

deficient performance. Each witness testified to having heard 

gunshots and seen the PT Cruiser in the early hours of January 

11, 2017. In light of this testimony, Stelly cannot show prejudice from his trial counsel’s failure to question the witnesses 

about their best estimates of when the shooting occurred. This 

claim of ineffective assistance is meritless.

(ii) Part of Claim 14 and All of 

Claim 16 Lack Particularity

a. Omaha Fire Department 

Records, Claim 14

Stelly’s claim 14 is twofold. He claims that his trial counsel 

failed to elicit testimony about Omaha Fire Department records 

that would have contradicted the State’s evidence as to the 

timeline of the shooting on January 11, 2017, and he claims 

that his trial counsel failed to actually obtain and introduce 

the Omaha Fire Department records. As to the first part of his 

claim, Stelly does not allege what testimony his counsel should 

have sought to elicit or from whom, and thus, he has failed 

to allege deficient performance with sufficient particularity. 

As we note later in our analysis, the second part of claim 14 

50 Id. at 31.
- 63 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

is alleged with sufficient particularity, but the record does not 

permit us to resolve it on direct appeal.

b. Chain of Custody, Claim 16

Stelly claims his trial counsel failed to ask questions of the 

State’s witnesses that would have revealed a break in the chain 

of custody of the shell casing and bullet fragment evidence 

recovered from the scene of the shooting. He suggests such 

a break would have supported a defense that officers planted 

evidence from another crime scene being processed on January 

11, 2017.

[20] But Stelly does not allege which of the State’s many 

witnesses should have been questioned about the possible 

break in the chain of custody or how their testimony would 

reveal such a break. We conclude Stelly has failed to allege 

this claim of deficient performance with sufficient particularity. A claim of ineffective assistance that is insufficiently stated 

is no different than a claim not stated at all.51

(iii) Record Insufficient to Resolve Claims 

1 Through 4, 7, 8, and 10 Through 13 

and Part of Claim 14

We conclude Stelly’s remaining claims of ineffective 

assistance cannot be resolved on direct appeal, because the 

record is not sufficient to conclusively determine whether 

counsel did or did not perform in a deficient manner or 

whether Stelly was or was not prejudiced by counsel’s alleged 

deficient performance.52 We emphasize two important points 

about our conclusion that the record is insufficient to resolve 

these claims.

[21] First, 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 

51 See State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018).

52 See State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
- 64 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

in a motion for postconviction relief,53 because that determination is governed by an entirely different standard.54

[22] And second, 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. Several 

factors make this so. Sometimes, critical portions of the existing trial record are not included in the appellate record, but 

are later available to the postconviction court. Additionally, 

because a defendant on direct appeal is not required to 

make specific allegations of prejudice,55 the appellate court 

often has an incomplete understanding of how a defendant 

claims to have been prejudiced by certain deficient conduct. 

Consequently, a finding on direct appeal that the existing 

record is insufficient to determine a claim of deficient conduct does not speak to whether the existing record will be 

sufficient to affirmatively refute prejudice once the claim is 

alleged on postconviction.

4. Cumulative Erro

Finally, Stelly argues that the cumulative effect of the trial 

court’s errors, and his trial counsel’s deficiencies, deprived 

him of a fair trial. We have recognized the doctrine of cumulative error in the context of a criminal jury trial,56 but it is not 

supported in this case.

We found no merit to any of Stelly’s assigned errors. And 

we concluded that 8 of his 18 claims of ineffective assistance are either without merit or not alleged with sufficient 

53 Filholm, supra note 27.

54 See, e.g., State v. Tyler, 300 Neb. 365, 918 N.W.2d 306 (2018) (to be 

entitled to evidentiary hearing, prisoner must allege facts in motion for 

postconviction relief that, if proved, would constitute violation of his or 

her rights under U.S. or Nebraska Constitution).

55 Filholm, supra note 27.

56 See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
- 65 -

Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. STELLY

Cite as 304 Neb. 33

particularity. We are unable, on direct appeal, to resolve 

Stelly’s remaining claims of ineffective assistance of trial 

counsel, and thus, those unresolved claims cannot form the 

basis for a claim of cumulative error. Stelly’s cumulative error 

argument is without merit.

V. CONCLUSION

For the foregoing reasons, we affirm Stelly’s convictions 

and sentences.

Affirmed

Heavican, C.J., not participati