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habitual criminal charge, the presentence investigation report
reveals more than two dozen misdemeanors. We also find it
pertinent that this is not his first conviction for escape.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
State of Nebraska, appellee, v.
Richard K. Cook, appellant.
___ N.W.2d ___
Filed March 20, 2015. No. S-13-271.
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. Postconviction: Constitutional Law. The Nebraska Postconviction Act, Neb.
Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), is available to
a defendant to show that his or her conviction was obtained in violation of his or
her constitutional rights.
3. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion
containing factual allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution, causing the judgment
against the defendant to be void or voidable.
4. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. When
a court denies relief without an evidentiary hearing, an appellate court must
determine whether the petitioner has alleged facts that would support a claim of
ineffective assistance of counsel and, if so, whether the files and records affirmatively show that he or she is entitled to no relief.
5. Trial: Due Process: Police Officers and Sheriffs: Witnesses. A due process
violation occurs when a law enforcement officer who participated in the investigation or preparation of the prosecution’s case fabricates evidence or gives false
testimony against the defendant at trial on an issue material to guilt or innocence.
6. Postconviction. An evidentiary hearing is not required when a motion for postconviction relief alleges only conclusions of fact or law.
7. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an
appellate court.
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Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Jerry L. Soucie for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
NATURE OF CASE
Richard K. Cook was convicted of first degree murder and
use of a firearm to commit a felony. Cook’s conviction was
affirmed. Cook now seeks postconviction relief. He appeals
the district court’s rejection of 28 of his 35 claims for postconviction relief. We conclude that the district court did not
err when it denied an evidentiary hearing on the grounds that
investigators fabricated evidence used at Cook’s trial and that
he received ineffective assistance of counsel from his appellate
counsel’s failure to raise certain issues related to his trial counsel’s performance on direct appeal.
BACKGROUND
This case is an interlocutory appeal from the district court’s
order denying some of Cook’s claims for postconviction relief
of his convictions for first degree murder and use of a weapon
to commit a felony. A full recitation of the facts can be found
in State v. Cook.1 Below is a summary of the relevant facts
related to this appeal.
Amy Stahlecker’s Death.
On April 29, 2000, Amy Stahlecker’s body was found on the
banks of the Elkhorn River near the intersection of Highway
275 and West Maple Road in Douglas County, Nebraska.
Witnesses last saw Stahlecker alive around 1 a.m. on April 29,
when she left Omaha to drive back to Fremont, Nebraska. The
1
State v. Cook, 266 Neb. 465,
667 N.W.2d 201 (2003).
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white Ford Explorer Stahlecker was driving was found with a
blown tire on the side of Highway 275.
Stahlecker’s body was found underneath a bridge that was
a part of West Maple Road. Stahlecker had been shot multiple
times, including once to the back of the head and twice to
the face. An autopsy revealed multiple contusions and abrasions on Stahlecker’s body. The autopsy also found semen in
the vaginal area, but no specific evidence of sexual assault.
DNA testing of the semen revealed that it was consistent with
Cook’s DNA.
On May 2, 2000, Michael Hornbacher, a friend of Cook,
contacted a Washington County deputy sheriff and told him
that Cook had confessed to Hornbacher that Cook killed
Stahlecker. Hornbacher also later gave statements to Nebraska
State Patrol investigators. Hornbacher and Cook gave conflicting accounts as to what happened the night Stahlecker was
killed and what happened the following day.
Hornbacher’s Version.
Hornbacher testified at trial that Cook and Hornbacher
were at a bar the night of Stahlecker’s death. Hornbacher saw
Cook leave in Cook’s truck, and Hornbacher later got a ride
home from three people he had met at the bar. Hornbacher’s
girlfriend, with whom he shared an apartment, testified that
she waited up for Hornbacher and that he arrived home at
12:50 a.m. After Hornbacher arrived back at his apartment,
he passed out in his bed and did not wake up until 11 or
11:30 a.m.
Believing he left personal items in Cook’s truck, Hornbacher
called Cook about picking up the items. Cook did not want
Hornbacher to come to Cook’s residence, so they arranged
for Cook to pick up Hornbacher in front of Hornbacher’s
residence. After Hornbacher got in the truck, Cook said that he
was concerned about something that might affect his family.
Cook then drove to a park and confessed to killing a
woman the night before. Hornbacher testified that Cook told
him that after Cook left the bar, Cook drove west on Highway
275 toward Fremont, where he saw a woman on the side of
the road with a flat tire on her vehicle. Cook stated that he
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picked the woman up and that they had sexual intercourse in
the front seat of the truck. After the intercourse, Cook said the
woman had “‘weirded out’” and Cook feared the woman may
claim that he raped her.2 According to Hornbacher, Cook said
he “ordered the woman to get out of the truck, and then he
‘lost it’ and grabbed his 9-mm handgun from the truck’s console and ‘unloaded’ it on the woman.”3 Cook told Hornbacher
that that he dumped the body in a ravine.
Cook’s Version.
Cook testified at his own trial and presented a different
version of events the night of Stahlecker’s death. According
to Cook, shortly after leaving the bar, Cook and Hornbacher
decided to drive to a bar in Fremont that featured female strippers. While driving along Highway 275, Cook testified that
they encountered Stahlecker and her vehicle on the side of the
highway. Cook decided he would stop to help change the tire.
Cook attempted to change the tire, but was unable to do so.
Cook testified that he could not call for help because his cell
phone was not working and they could not find Hornbacher’s
cell phone. Cook decided that they should find an open serv
ice station to get help. After finding no open service station,
Stahlecker suggested they return to the Explorer. They were
unable to find the vehicle and decided to pull over into an offroad area on West Maple Road and “‘chill out.’”4
Cook testified that Hornbacher was either passed out or
sleeping in the back seat of Cook’s truck at this time. According
to Cook, he and Stahlecker then had consensual sexual intercourse in the front passenger seat. After Cook and Stahlecker
finished and began dressing, Hornbacher spoke up from the
back seat. Cook stated that neither he nor Stahlecker were
aware Hornbacher was awake in the back seat. Cook testified
that Hornbacher forcefully demanded that Stahlecker perform
oral sex on him and that she refused. An argument ensued, and
Hornbacher reached to grab Stahlecker’s shoulder. According
2
Id. at 471,
667 N.W.2d at 209.
3
Id.
4
Id. at 472,
667 N.W.2d at 209.
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to Cook, it was at this time that Stahlecker exited the truck and
began to walk away. Cook then got out of the truck to give
Stahlecker her keys or offer her a ride.
Cook testified that he heard two gunshots and then saw
Hornbacher leaning out of the driver’s-side window with
Cook’s gun in his hand. Hornbacher exited the vehicle and
approached Stahlecker, and then Cook saw Hornbacher shoot
Stahlecker in the back of the head. After Stahlecker collapsed,
Hornbacher then shot Stahlecker in the face two times. Cook
testified that he ran to Stahlecker’s body to check for a pulse.
Cook stated that he was forced at gunpoint by Hornbacher to
help drag the body across the road and dump it off the bridge.
Cook also testified that Hornbacher threatened to kill him if
Cook said anything about the murder.
Investigation and Forensic Evidence.
At the scene of the crime, investigators found a blood smear
on the bridge, with a trail of blood drops leading from the
bridge, across the median, and to the eastbound lane of West
Maple Road. DNA tests determined that the blood was con
sistent with Stahlecker’s DNA. Investigators also made castings of a shoeprint located on the bridge and another shoeprint
left in a pool of blood.
After Hornbacher’s statements to law enforcement, investigators from the Nebraska State Patrol went to Cook’s place
of employment in Council Bluffs, Iowa, and told Cook that
they needed to speak with him at their Omaha office. The
Nebraska State Patrol transported Cook’s truck to the Omaha
office, then returned it to Council Bluffs and, after obtaining a
search warrant, brought the truck back to the Nebraska State
Patrol headquarters in Omaha. Investigators discovered traces
of blood and fibers from Stahlecker’s clothes on the inside of
Cook’s truck. DNA tests revealed that Stahlecker could not
be excluded as the contributor of the blood. Investigators also
determined that a bloody shoeprint found on the exterior door
panel of Cook’s truck matched the shoeprints found at the
scene of the crime.
David Kofoed, the chief crime scene investigator for
Douglas County at the time, assisted with the collection of
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evidence in this case. In 2009, it was discovered that Kofoed
had fabricated and planted evidence in at least two different
murder investigations. In both cases, it was determined that
Kofoed planted evidence to corroborate confessions made
to police.5
In this case, Kofoed specifically assisted the Nebraska
State Patrol by taking castings of the shoeprints found at the
scene of Stahlecker’s death. In addition, Kofoed, along with
three other Douglas County crime scene investigators, initially processed the evidence from Cook’s truck; Kofoed and
another investigator were responsible for physically collecting
evidence from the truck, while the other investigators were
responsible for note-taking and documenting and photographing the evidence.
Trial and Direct Appeal.
On April 26, 2001, the jury found Cook guilty of first degree
murder and use of a firearm to commit a felony. On July 20,
the court sentenced Cook to life imprisonment on the first
degree murder conviction and 491⁄2 to 50 years’ imprisonment
on the weapons conviction.
Cook appealed his convictions. Cook alleged seven claims
of trial court error and seven different claims of ineffective
assistance of counsel by Cook’s trial attorney. In case No.
S-12-681, this court rejected all of Cook’s claims of trial court
error, determining that there was an insufficient record to
decide each of Cook’s ineffective assistance of counsel claims,
and dismissed the appeal on September 13, 2012.
Cook filed his initial pro se motion to vacate his convictions
on July 2, 2004. On April 11, 2005, Cook filed an amended
pro se motion for postconviction relief. On September 4, 2009,
Cook filed a second, and final, amended motion for postconviction relief. The majority of the second amended motion
was drafted by Cook, despite Cook’s having been appointed
a lawyer. Cook raised four of the same claims of ineffective
5
State v. Kofoed, 283 Neb. 767,
817 N.W.2d 225 (2012). See State v.
Edwards, 284 Neb. 382,
821 N.W.2d 680 (2012).
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assistance of counsel as he did on direct appeal, and 31 new
claims for postconviction relief.
On June 27, 2012, the district court entered an order
addressing all of Cook’s claims. The district court granted
a hearing on Cook’s four claims of ineffective assistance of
counsel that were raised on direct appeal, along with three
new claims. The remaining claims were rejected by the district court on the grounds that the claims either clearly had no
merit or did not allege facts with sufficient specificity regarding prejudice. Two of the rejected claims involve allegations
that Kofoed fabricated evidence, and the rest of the claims
allege that Cook received ineffective assistance of counsel due
to his appellate counsel’s failure to make certain arguments
on appeal.
ASSIGNMENTS OF ERROR
Cook assigns that the district court erred in (1) denying
an evidentiary hearing and dismissing the motion for postconviction relief on the ground that Kofoed or other investigators planted evidence used at Cook’s trial, in violation of
the Due Process Clause of the 14th Amendment to the U.S.
Constitution, and (2) denying an evidentiary hearing and dismissing the motion for postconviction relief on the grounds
relating to the “layered” allegation of ineffectiveness of appellate counsel for failure to raise and argue issues on direct
appeal involving conflict of interest, specific instances of ineffective assistance of trial counsel, and incorrect jury instructions, in violation of the 5th, 6th, and 14th Amendments to the
U.S. Constitution.
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.6
6
State v. Baker, 286 Neb. 524,
837 N.W.2d 91 (2013).
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ANALYSIS
[2,3] The Nebraska Postconviction Act, Neb. Rev. Stat.
§ 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), is
available to a defendant to show that his or her conviction was obtained in violation of his or her constitutional
rights.7 An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing
factual allegations which, if proved, constitute an infringement of the movant’s rights under the Nebraska or federal
Constitution, causing the judgment against the defendant to
be void or voidable.8
[4] Cook assigns that the district court erred in denying an
evidentiary hearing and dismissing his motion for postconviction relief on the grounds that an investigator fabricated evidence and that his counsel on direct appeal was ineffective for
failing to raise certain issues on direct appeal. When a court
denies relief without an evidentiary hearing, an appellate court
must determine whether the petitioner has alleged facts that
would support a claim of ineffective assistance of counsel and,
if so, whether the files and records affirmatively show that he
or she is entitled to no relief.9
Fabricated Evidence Claims.
[5] Cook seeks an evidentiary hearing to prove that Kofoed
fabricated DNA evidence found in Cook’s truck. If Kofoed
did indeed fabricate evidence, that would constitute a violation of Cook’s right to due process. A due process violation
occurs when a law enforcement officer who participated in the
investigation or preparation of the prosecution’s case fabricates
evidence or gives false testimony against the defendant at trial
on an issue material to guilt or innocence.10
In his motion for postconviction relief, Cook makes allegations that Kofoed or unnamed Nebraska State Patrol investigators either cross-contaminated evidence from the crime
7
State v. Sims, 277 Neb. 192,
761 N.W.2d 527 (2009).
8
State v. Branch, 286 Neb. 83,
834 N.W.2d 604 (2013).
9
State v. Yos-Chiguil, 281 Neb. 618,
798 N.W.2d 832 (2011).
10
Edwards, supra note 5.
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scene into the truck or actually planted evidence in the truck.
Cook alleges that blood traces, later determined to match
Stahlecker’s DNA, and a fiber from Stahlecker’s underwear
were somehow placed in Cook’s truck by the investigators. He
also alleges in his motion, without any factual support, that
Kofoed purchased a pair of shoes to create a bloody footprint
in the truck that matched a footprint found at the scene of
the crime.
[6] An evidentiary hearing is not required when a motion
for postconviction relief alleges only conclusions of fact or
law.11 We agree with the district court that the claim of fabricated evidence is “only an allegation involving a conclusion
without any supporting facts.” As the district court also noted,
all of the evidence found inside Cook’s truck is easily explainable by Cook’s own version of the events. Cook admitted that
Stahlecker was inside his truck shortly before her death and
that he had sexual intercourse with Stahlecker. This would
explain the fiber from Stahlecker’s underwear that was found
in the truck. Cook also testified that he checked Stahlecker’s
pulse after she was shot and that he was forced to help move
Stahlecker’s body across the road and dump it over the bridge.
This places Cook near the body and would explain the bloody
footprint found on the outside of the truck, along with the
traces of blood in the truck’s interior.
In State v. Edwards,12 a case involving a Kofoed investigation, we stated that the allegations “would be too conclusory
if [the defendant] had simply alleged in a vacuum that a law
enforcement officer fabricated evidence to be used against him
at trial without any factual allegations upon which to base such
a claim.” But we determined in that case that the defendant’s
claims warranted an evidentiary hearing when the allegations
made by the defendant were similar to Kofoed’s unlawful conduct in two prior investigations:
[The defendant] alleged that as in the 2006 investigation
of the . . . murders, Kofoed found blood in an obscure
part of [the defendant’s] car after other [crime scene]
11
Branch, supra note 8.
12
Edwards, supra note 5, 284 Neb. at 404, 821 N.W.2d at 700.
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investigators had examined the car and failed to find
this evidence. The facts alleged in [the defendant’s]
petition also appear similar to the 2003 investigation in
that Kofoed allegedly submitted swabs of evidence for
DNA testing instead of submitting the evidence itself.
And the allegations suggest that Kofoed may have held
physical evidence for several days before having another
investigator test it, a pattern that is similar to his conduct during the 2006 investigation in which he fabricated evidence.13
In this case, Kofoed and his team discovered all of the
evidence during the initial search of the truck. The blood
was found on the floormat of Cook’s truck and also on the
inside and outside door panels of the driver’s-side door, all
areas of the truck which could not be classified as “obscure.”
Additionally, Kofoed had no involvement with the investigation after he and his team completed the initial search of
the vehicle. Simply alleging Kofoed’s involvement in the
investigation and his history of fabricating evidence is not
sufficient on its own to support a claim for postconviction
relief. Without more, there is no basis to conclude, based on
the record in this case, that Kofoed or any other investigator
placed this evidence in Cook’s truck, through either crosscontamination or fabrication. The district court did not err in
dismissing these claims. Cook’s assignment of error is without merit.
Layered Ineffective Assistance
of Counsel Claims.
Cook assigns that the district court erred in failing to grant
an evidentiary hearing for several of Cook’s layered ineffective assistance of counsel claims. This appeal is limited solely
to the question of whether Cook failed to allege sufficient
facts to demonstrate a violation of his constitutional rights or
whether the record affirmatively shows that he is entitled to
no relief.14
13
Id.
14
See Baker, supra note 6.
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[7] Although Cook makes several conclusory arguments in
his statement of facts regarding the sufficiency of his allegations, he gives no explanation in the argument section of his
brief for how the district court actually erred in rejecting his
layered claims or how the claims were factually sufficient.
Instead, Cook argues that this court should overturn the rule
that precludes review of issues which were raised on direct
appeal or were known to the defendant and could have been
litigated on direct appeal.15 An alleged error must be both
specifically assigned and specifically argued in the brief of
the party asserting the error to be considered by an appellate
court.16 Because Cook failed to argue how the district court
erred in rejecting his layered ineffective assistance of counsel claims for postconviction relief, we will not consider his
assignment of error. Conversely, the argument Cook actually
makes in his brief was not specifically assigned as an error on
appeal, nor was it raised before the district court. We therefore
decline to address it.
CONCLUSION
We conclude that the district court did not err in denying
Cook’s request for a hearing for 28 of his 35 grounds for postconviction relief. We affirm the district court’s order.
Affirmed.
15
See, e.g., State v. Lee, 282 Neb. 652,
807 N.W.2d 96 (2011).
16
State v. Filholm, 287 Neb. 763,
848 N.W.2d 571 (2014).
