The Sidney Sun-Telegraph - Serving proudly since 1873 as the beautiful Nebraska Panhandle's first newspaper

By Don Ogle 

Martinez Loses Postconviction Appeal to Supreme Court


April 12, 2019

A man convicted of a 2012 murder in Sidney has been denied postconviction relief by the Nebraska Supreme Court.

Larry Martinez was convicted in July 2012 in the shooting death of Mandy Kersham and was later sentenced to life in prison. Martinez later appealed the conviction, which was denied.

This time around, Martinez filed for postconviction relief, claiming his council was ineffective for not raising his mental capacity in support of an argument that his statements to law enforcement should have been suppressed for being involuntary, and also for not raising an argument that his mental capacity precluded him from acting with the premeditation, deliberation, and intent necessary to be found guilty of first degree murder.

According to the Supreme Court report, the district court denied Martinez’ motion without an evidentiary hearing. In its order, the district court reasoned that Martinez could have raised both of the claims at issue in this appeal in his direct appeal, but did not. The district court also found that, even if it was assumed that Martinez’ counsel provided deficient representation, Martinez could not demonstrate he was prejudiced.

Martinez claimed the trial court erred by denying him postconviction relief without an evidentiary hearing on his claims that his counsel was ineffective for not raising his mental capacity in support of an argument that his statements to law enforcement were involuntary and also in support of an argument that he could not have formed the requisite deliberation, premeditation, and intent to commit the crimes charged.

In its ruling, the Court said the district court was incorrect in finding that Martinez waived his claims of ineffective assistance of counsel. But the Court also found that Martinez’ claims failed on their merits.

In the other part of the claim, Martinez said his counsel provided deficient representation by not raising his mental capacity when the voluntariness of his statements was under consideration. Martinez claim cited case law that said the intelligence, education, and background of the accused are factors that can be considered in determining whether a defendant’s statement was voluntary or coerced.

In ruling the Court said that while intelligence, education, and background of an accused are factors that may be relevant to whether a confession was voluntary, the Court has also repeatedly held that coercive police activity is a necessary predicate to a finding that a confession is not voluntary. In Martinez’ case, the Court ruled there was no evidence of coercion, and with Martinez’ mental capacity could not have rendered his statements to law enforcement involuntary. The Court said because defense counsel is not ineffective for failing to raise an argument that has no merit, there was no error in the denial of this claim without an evidentiary hearing.

As to Martinez argument that his council was ineffective, for failing to argue that his mental capacity precluded him from committing first degree murder, the Court ruled that had evidence regarding Martinez’ intellectual functioning been introduced at trial, members saw no reasonable probability it could have overcome all of the evidence introduced at trial showing that Martinez deliberately killed Kershman. That evidence included a statement he made to an acquaintance that he was going to kill Kershman. Martinez also told police that he planned to shoot Kershman after she sent him a text message that made him angry and that when he drove over to Blake’s house, he did so with the intention of shooting her.

In its conclusion the Supreme Court ruled, “We find that the district court did not err in denying Martinez’ motion for postconviction relief without an evidentiary hearing.”

Martinez will continue to serve his sentence of life imprisonment consecutive to 10-50 years on convictions of 1st Degree Murder and Use of a Firearm to Commit a Felony.


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