State v. Stelly
304 Neb. 33
Neb.2019Background
- ShotSpotter alerted police to gunfire near 3615 Laurel Ave., Omaha; victim D’Angelo Branch was found dead with multiple gunshot wounds to the head and body.
- An LG cell phone was found ~10–15 feet from Branch; a ZTE phone was in Branch’s pocket. Data from the LG phone tied it to Malik Stelly; DNA on a hat seized from Stelly’s apartment and DNA on the LG phone matched Stelly/Branch respectively.
- Police searched the LG phone pursuant to a warrant and later discovered the warrant and affidavit misidentified the target device as the ZTE phone (a scrivener’s error); officers obtained a corrected warrant thereafter.
- At trial the court admitted multiple gruesome crime-scene and autopsy photos over Stelly’s objections; Stelly was convicted of first-degree murder and related weapon offenses and appealed.
- On appeal Stelly challenged (1) suppression of LG-phone evidence based on warrant particularity, (2) admission of photographs as unduly prejudicial/cumulative, and (3) numerous ineffective-assistance claims (18 discrete allegations). The Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Search-warrant particularity (LG vs ZTE phone) | Warrant valid because affidavit and warrant together described the LG phone sought | Stelly: warrant misidentified device (ZTE), so search of LG phone was not authorized | Court: affidavit accompanied and described LG phone; Kleinberg cures scrivener error; warrant sufficiently particular; suppression denied |
| Admission of gruesome / cumulative photographs | Photographs were relevant to ID, condition of body, wound location, and intent/malice | Stelly: photos overly graphic and needlessly cumulative; prejudicial | Court: photos were probative on contested issues (wounds, spatial relation to casings, malice); no abuse of discretion in admission |
| Counsel failure to object to receipt of exhibit 103 (not formally offered) | State: exhibit was intended to be offered; omission was inadvertent and known to defense | Stelly: counsel ineffective for not objecting to receipt absent formal offer | Court: record shows defense and court knew 103 would be received; any objection would not change outcome; no prejudice; claim denied |
| Counsel failures re: victim-character evidence and investigation (multiple claims) | State: much of testimony was relevant (e.g., victim didn’t drive); many investigative claims better raised postconviction or insufficiently pled | Stelly: counsel should have objected to sympathy-evoking testimony and pursued many investigative leads/experts | Court: testimony that Branch didn’t drive was relevant; other sympathetic evidence likely nonprejudicial given strong case and jury instructions; several ineffectiveness claims affirmatively refuted, some inadequately pled, and many cannot be resolved on direct appeal (left for postconviction). No cumulative-error reversal |
Key Cases Cited
- State v. Kleinberg, 228 Neb. 128 (inadvertent scrivener error in warrant may be cured by affidavit)
- State v. Dubray, 289 Neb. 208 (admission of gruesome homicide photographs; probative value and malice/intent)
- State v. Filholm, 287 Neb. 763 (standards for pleading ineffective-assistance claims on direct appeal)
- Iromuanya v. State, 282 Neb. 798 (context for evaluating prosecutor remarks and prejudice analysis)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)