State v. Vela, 297 Neb. 227

Background

Erick F. Vela pled guilty in 2003 to five murders and related felonies from a 2002 Norfolk, Nebraska bank robbery; a three-judge panel imposed death sentences for each murder.
Vela’s convictions and sentences were affirmed on direct appeal (State v. Vela, 279 Neb. 94 (2010)).
In 2014 Vela filed an amended postconviction motion (his first opportunity to raise ineffective-assistance claims because trial and direct-appeal counsel were the same). The district court denied relief without an evidentiary hearing; this court remanded for reconsideration under the correct standard and the district court again denied relief in 2016.
On appeal from the postconviction denial, Vela challenged six specific ineffective-assistance claims relating to: timing of plea, prosecutor–juror relationship, failure to appeal Batson rulings, intellectual-functioning testing, omission of a malice instruction, and failure to present evidence negating malice.
The Supreme Court of Nebraska reviewed de novo whether Vela’s motion alleged facts that, if true, would show constitutional violations and whether the record affirmatively showed no entitlement to relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timing of guilty plea (pre-LB1, pre-amendment, pre-Lundell discovery)	Counsel should have advised/allowed an earlier guilty plea; earlier plea would have avoided death-penalty exposure or prejudicial evidence (LB1/amended information/Lundell discovery)	Prior precedent and procedural rules meant death penalty exposure existed; events cited either would not have prevented death eligibility or counsel could not reasonably foresee/control discovery of Lundell body	No deficient performance or prejudice; claim speculative and undermined by prior Nebraska holdings (Vela, Galindo) — denied
Prosecutor–presiding juror relationship	Counsel failed to timely discover/challenge that presiding juror was the prosecutor’s pastor; failure to move for mistrial/new trial or raise on appeal prejudiced Vela	Voir dire showed juror could be fair; no allegation counsel would have struck juror or the relationship’s extent; trial court discretion on juror retention	No prejudice shown; retention reasonable given voir dire answers; claim denied
Failure to assign error on Batson rulings on direct appeal	Counsel failed to appeal trial court’s overruling of Batson challenges to strikes of sole Hispanic and sole African‑American venire members	Prosecutor articulated race‑neutral reasons at trial; trial court accepted them; appellate inclusion would not likely have changed outcome	No reasonable probability appellate result would differ; appellate failure not ineffective — denied
Failure to permit State expert adaptive‑function testing / present mental‑retardation evidence	Counsel prevented State expert (Zlomke) from administering adaptive testing; testing would have shown deficits and barred death penalty	Record shows Zlomke conducted alternative adaptive‑behavior assessment and concluded overall adaptive behavior appropriate; no prejudice from alleged prevention	No deficient performance or prejudice; record contradicts claim — denied
Failure to request malice definition instruction (re: Lundell evidence as aggravator)	Counsel should have requested instruction defining malice because Lundell evidence was used to prove aggravating circumstance §29‑2523(1)(a)	Aggravator examines prior assaultive/terrorizing history, not mental state; even if malice not established, evidence of killing would support aggravator as lesser homicide still qualifies	Even absent malice instruction, evidence still supported aggravator; no prejudice shown — denied
Failure to present evidence negating malice re: Lundell killing	Counsel failed to present evidence that Vela acted under coercion or lacked malice (or that diminished intellect negated malice)	Even if malice absent, evidence of killing supports the statutory aggravator; sentencing panel likely would not have reduced weight such that death would be avoided	No prejudice; aggravator would remain supported and result likely unchanged — denied

Key Cases Cited

State v. Vela, 279 Neb. 94 (affirming convictions and discussing adaptive‑behavior evidence)
State v. Galindo, 278 Neb. 599 (holding notice-of-aggravation procedural and not retroactive)
State v. Watson, 295 Neb. 802 (postconviction pleading and hearing standards)
State v. Ely, 295 Neb. 607 (first opportunity to raise ineffective-assistance where same counsel handled trial and appeal)
State v. Starks, 294 Neb. 361 (standard for prejudice from omitted appellate issue)
State v. Boche, 294 Neb. 912 (constitutional issues not presented to trial court are not for appeal)
State v. Oliveira‑Coutinho, 291 Neb. 294 (standard for reviewing Batson race‑neutral explanations)
Strickland v. Washington, 466 U.S. 668 (ineffective-assistance standard)
Batson v. Kentucky, 476 U.S. 79 (limits on peremptory strikes under Equal Protection)
Ring v. Arizona, 536 U.S. 584 (capital sentencing procedural holdings)