State v. Avina-Murillo
| Decision Date | 28 September 2018 |
| Docket Number | No. S-17-1302.,S-17-1302. |
| Parties | STATE of Nebraska, appellee, v. Veronica P. AVINA-MURILLO, appellant. |
| Court | Nebraska Supreme Court |
Christopher J. Roth, of Forney Roth, L.L.C., Omaha, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.
After being convicted by a jury and sentenced in a criminal case, Veronica P. Avina-Murillo brings this direct appeal. We cannot review the denial of her motion for new trial, because the motion was not timely. We review her ineffective assistance claims, stemming from her initial trial counsel’s allegedly unethical conduct—which she characterizes as a conflict of interest. A central question is whether the Strickland v. Washington1 standard applies or whether prejudice should be presumed. On these facts, we conclude that Strickland applies and that the record is insufficient to resolve her claims. We affirm.
The State charged Avina-Murillo with negligent child abuse resulting in serious bodily injury based on events occurring on April 2, 2015. On that day, J.P.’s mother took 6-month-old J.P. to Avina-Murillo’s house to be watched. While there, J.P. began to act abnormally. A doctor later diagnosed J.P. with abusive head trauma
.
The district court conducted a jury trial. Prior to the introduction of evidence, the court sustained the State’s motion to sequester all of the witnesses.
During opening statements, Avina-Murillo’s counsel advised the jury that it would hear from J.P.’s parents. Counsel outlined the parents’ testimonies:
According to the evidence, at approximately 8 a.m. on April 2, 2015, J.P.’s mother took J.P. to Avina-Murillo’s house. J.P., who is Avina-Murillo’s niece, appeared to be fine. But at approximately 10 a.m., Avina-Murillo noticed that J.P. looked listless, that "her eyes did not look normal," and that "[s]he was touching her right ear quite a bit." A detective testified that Avina-Murillo told him J.P. "became lethargic, moaning, and ... the eyes would move in opposite directions." According to the detective, Avina-Murillo indicated to him that she knew there was something wrong with J.P. at that point in time. But she did not believe it was anything serious or grave.
According to Avina-Murillo, J.P. had exhibited similar behavior "[d]ays before." In mid-March 2015, J.P. experienced vomiting and diarrhea. J.P.’s parents took her to the emergency room two or three times, and J.P. was diagnosed with a viral illness. But during a followup visit 2 to 3 days prior to April 2, J.P. looked well and was no longer vomiting.
Avina-Murillo called J.P.’s mother to let her know that J.P. "was not acting right." She told J.P.’s mother that she believed J.P. was sick like J.P. had been earlier and that J.P. might have "gotten some air in her ear." In response, J.P.’s mother told Avina-Murillo to administer Tylenol
for ear pain and to put cotton in J.P.’s ear with a little bit of "vapor rub." After Avina-Murillo did so, J.P. drank her bottle and fell asleep. After noon, J.P.’s mother arrived to take J.P. home.
At approximately 4:50 p.m., J.P.’s parents took J.P. to a doctor. At that time, J.P. was lethargic, crying, and inconsolable. She had symptoms indicating increased pressure in the brain. Intracranial pressure can cause brain damage and is a potentially life-threatening injury. A CT scan
revealed a subdural hematoma, i.e., bleeding on the inside of the brain. The CT scan showed both newer and older bleeding. Newer bleeding is bleeding typically within the past 24 hours, while older bleeding is generally 48 to 72 hours old or older.
A child abuse pediatrician believed that J.P. most likely suffered a rotational or shaking injury. A different doctor testified that the injury revealed on the CT scan
would have required significant force and that symptoms would have appeared "fairly shortly after onset of this type of bleeding." The defense’s expert opined that it was not possible to determine the specific time that an acute subdural hematoma occurred.
During the trial, the district court made a record after an issue arose. The court recounted that there was a no contact order prohibiting Avina-Murillo from communicating with J.P., that there was an order of sequestration as to any witnesses, and that the State had listed J.P.’s parents as witnesses. The prosecutor then stated that over the lunch hour, Avina-Murillo and her counsel were observed having lunch together with J.P. and J.P.’s parents.
Avina-Murillo’s counsel offered a different version of events. He explained that at some point while he, his assistant, Avina-Murillo, and Avina-Murillo’s husband were having lunch, J.P.’s parents entered the restaurant. According to counsel, "Nothing between them was discussed." But counsel stated that after talking to Avina-Murillo and in order "to essentially keep this clean," the defense would not call either parent to testify.
The court and Avina-Murillo’s counsel then engaged in a colloquy regarding the voluntariness of the decision not to call the parents as witnesses. Avina-Murillo’s counsel informed the court that he had spoken to Avina-Murillo "before Your Honor came out" and that the decision not to call J.P.’s parents as witnesses was Avina-Murillo’s free and voluntary act.
Later, while the jury was deliberating, the court held another hearing at the State’s request regarding the lunch incident. Video acquired from the restaurant contradicted what Avina-Murillo’s counsel reported to the court. The video showed defense counsel, his assistant, Avina-Murillo, J.P., and J.P.’s parents all surrounding the same table, having lunch together. The State requested that sanctions be ordered against defense counsel for encouraging the violation of the no contact order and for giving the court false information.
On Friday, September 29, 2017, the jury returned a guilty verdict, and we describe in more detail below the procedures employed by the court. On that date, the court signed a "Judgment on Conviction," but this document did not impose any sentence. It was not filed until October 3.
On Wednesday, October 11, 2017, Avina-Murillo moved for a new trial. The motion alleged that irregularities in the proceedings occurred and that Avina-Murillo was prevented from having a fair trial.
In November 2017, the court imposed a sanction against Avina-Murillo’s counsel for intentionally misleading the court as to events occurring during the trial. As a sanction, the court filed a formal complaint with the Nebraska Supreme Court’s Counsel for Discipline.
On December 14, 2017, Avina-Murillo, through new counsel, filed an amended motion for new trial. She alleged an irregularity in the proceedings, including the lunch incident and the decision not to call J.P.’s parents as witnesses. Avina-Murillo claimed that her right to due process was violated when she was unable to present an adequate defense to the jury.
The court held a hearing on the motion and received several affidavits. Avina-Murillo stated in an affidavit that after her counsel had a meeting with the judge and the prosecutor, her counsel told her that J.P.’s parents were "no longer able to testify." She stated that when, back in the courtroom, the court asked her counsel about J.P.’s parents’ testifying, it was her understanding J.P.’s parents were unable to testify and she was unaware she had the choice to call them as witnesses. She stated that she would have called the parents as witnesses if she had known she had the option, because she believed their testimonies would have helped her case.
The court also received affidavits from J.P.’s parents that were nearly identical in substance. J.P.’s parents stated that Avina-Murillo’s counsel told them that there would be "problems or a big scandal" if they took the witness stand and that "the best thing to do would be to not take the witness stand." They stated that their testimonies would have been consistent with prior statements to police and the prosecutor. They would have testified that J.P. was vomiting and very sleepy in the 7 days before April 2, 2015. They "would have testified about the different statements from the doctors regarding the cause of [J.P.’s] conditions and medical issues, which includes the fact that two doctors had told [them] that [J.P.’s] issues were not caused by a shaking injury." They would have testified that due to J.P.’s blood condition, any shaking of her would have caused...
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