State v. Avina-Murillo, 917 N.W.2d 865

Background

Veronica Avina-Murillo was tried for negligent child abuse after her 6‑month‑old niece J.P. was diagnosed with abusive head trauma and subdural hematomas showing both new and older bleeding.
During trial, the court sequestered witnesses and entered a no‑contact order prohibiting Avina‑Murillo from contacting J.P. or her parents.
At trial counsel’s opening, defense counsel previewed testimony of J.P.’s parents, but later the parents did not testify after a lunch at which defense counsel, his assistant, Avina‑Murillo, her husband, and J.P.’s parents were all present—contradicting counsel’s earlier statements to the court about that meeting.
The State sought sanctions; the court later sanctioned defense counsel for misleading the court and filed a complaint with Counsel for Discipline. Avina‑Murillo’s trial counsel then declined to call the parents; affidavits later claimed counsel discouraged the parents from testifying.
The jury returned a guilty verdict on September 29, 2017; Avina‑Murillo filed a motion for new trial 12 days later and an amended motion thereafter. The district court denied the motion and sentenced her to probation.
On appeal the Nebraska Supreme Court addressed (1) timeliness of the new‑trial motion and (2) claims that trial counsel was ineffective because of a personal conflict of interest tied to the lunch incident and the decision not to call the parents.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of motion for new trial	Avina‑Murillo: motion was timely or exception applies because events surrounding counsel’s conduct prevented earlier filing	State: verdict was rendered Sept. 29; motion filed after 10‑day limit and no showing of being "unavoidably prevented"	Motion untimely; court will not review new‑trial ruling because verdict was rendered and accepted in open court Sept. 29 and no statutory exception applied
Standard for conflict‑based ineffective assistance	Avina‑Murillo: counsel’s conduct created a personal conflict warranting presumed prejudice	State: apply Strickland; no presumption absent multiple representation; record insufficient for relief	Court declines bright‑line rule; mostly Strickland applies for personal interest conflicts; presumption of prejudice reserved for actual conflicts like multiple representation
Whether counsel was ineffective for not calling parents / failing to move for mistrial or withdraw	Avina‑Murillo: counsel’s divided loyalties and advice caused omission of key exculpatory witnesses and failure to act, prejudicing trial	State: record does not conclusively show deficient performance or prejudice; evidence of guilt strong	On direct appeal the record is insufficient to conclusively resolve ineffectiveness under Strickland; presumption of prejudice not applied; conviction affirmed
Use of affidavits submitted with untimely new‑trial motion	Avina‑Murillo: affidavits establish facts supporting ineffective assistance	State: affidavits untested and insufficient on direct appeal	Court will consider affidavits for ineffective assistance review only to limited extent but finds they are untested and incomplete; resolution requires evidentiary development

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part ineffective assistance standard requiring deficient performance and prejudice)
Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980) (presumption of prejudice where counsel actively represented conflicting interests in multiple representation)
Mickens v. Taylor, 535 U.S. 162 (U.S. 2002) (limits on extending Cuyler presumption beyond multiple representation)
State v. Cotton, 299 Neb. 650 (Neb. 2018) (disapproved insofar as it could be read to always presume prejudice for non‑multiple representation conflicts)
State v. Vanness, 300 Neb. 159 (Neb. 2018) (on direct appeal reviewability of ineffective assistance claims and timeliness principles)
State v. Thompson, 244 Neb. 375 (Neb. 1993) (statutory timeliness of motions for new trial and rendition of verdict rules)