State v. Avina-Murillo
301 Neb. 185
| Neb. | 2018Background
- Veronica Avina-Murillo was tried and convicted of negligent child abuse for injuries to 6‑month‑old J.P.; CT scans showed acute and older subdural hematomas; medical experts disputed timing and cause.
- During trial, a court sequestration/no‑contact order applied to witnesses; defense counsel and Avina‑Murillo were observed having lunch with J.P. and J.P.’s parents, who were listed as State witnesses.
- Defense counsel had previewed the parents’ testimony during opening statements but later did not call them; video contradicted defense counsel’s account of the lunch.
- After conviction (verdict accepted in open court on Sept. 29, 2017), Avina‑Murillo filed a motion for new trial 12 days later and an amended motion months after; the district court sanctioned counsel for misleading the court and filed a complaint with Counsel for Discipline.
- The district court denied the untimely new‑trial motion and imposed probation; on appeal the Nebraska Supreme Court refused to consider the untimely new‑trial claims and reviewed ineffective‑assistance/conflict claims on the record.
Issues
| Issue | Avina‑Murillo’s Argument | State’s Argument | Held |
|---|---|---|---|
| Timeliness of motion for new trial | Motion filed >10 days after verdict but allegedly prevented by circumstances tied to lunch incident | Verdict was rendered and accepted in open court Sept. 29; statutory 10‑day rule applies; motion untimely | Motion untimely; appellate court will not consider new‑trial claims because no showing of being "unavoidably prevented" |
| Whether counsel’s conduct created a conflict requiring presumed prejudice | Counsel’s conduct (lunch, advising parents not to testify, misleading court) created a personal‑interest conflict; prejudice should be presumed | The conflict is a personal/self‑interest type, not multiple representation; Strickland rather than automatic presumption should apply in most such cases | Court declines bright‑line rule; on these facts Strickland applies because the conflict did not plainly demand presumed prejudice |
| Standard for ineffective assistance when counsel has personal/self interest conflict | Apply Cuyler/Cuyler‑style presumed prejudice or at least find prejudice given counsel’s actions | Apply Strickland; presumption limited to actual conflicts affecting representation (esp. multiple representation) | Strickland governs here; prejudice must be shown (deficient performance + reasonable probability of different outcome) |
| Whether record on direct appeal suffices to resolve ineffective‑assistance claim | Affidavits from Avina‑Murillo and parents show counsel’s divided loyalties and that parents would have testified favorably; direct‑appeal resolution is possible | Affidavits untested, counsel’s side absent; record insufficient to conclusively determine deficiency or prejudice on direct appeal | Record is insufficient on direct appeal to resolve the claims; neither prong of Strickland can be conclusively decided; conviction affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance: deficient performance + prejudice)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (presumption of prejudice where counsel actively represented conflicting interests in multiple representation)
- State v. Cotton, 299 Neb. 650 (2018) (Nebraska discussion of conflict/prejudice standards)
- State v. Armstrong, 290 Neb. 991 (2015) (personal interest conflict and application of prejudice analysis)
- State v. Edwards, 284 Neb. 382 (2012) (successive representation conflict; remand for evidentiary hearing)
- State v. Rocha, 286 Neb. 256 (2013) (rare direct‑appeal finding of ineffective assistance for failure to sever)
- State v. Faust, 265 Neb. 845 (2003) (rare direct‑appeal finding of ineffective assistance for failing to object to prejudicial evidence)