State v. Alarcon-Chavez, S-16-456.

• Decision Date: 03 March 2017
• Docket Number: No. S-16-456.,S-16-456.
• Citation: 893 N.W.2d 706,295 Neb. 1014
• Parties: STATE of Nebraska, appellee, v. Leodan ALARCON-CHAVEZ, Appellant.
• Court: Nebraska Supreme Court

295 Neb. 1014

893 N.W.2d 706

STATE of Nebraska, appellee,

v.Leodan ALARCON-CHAVEZ, Appellant.

No. S-16-456.

Supreme Court of Nebraska.

Filed March 3, 2017.

Martin V. Klein, of Carney Law, P.C., Omaha, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Stacy, J.

Leodan Alarcon-Chavez appeals from an order of the district court for Madison County denying his motion for postconviction relief after an evidentiary hearing. Finding no error, we affirm.

I. FACTS

In 2011, Alarcon-Chavez was charged with first degree murder, use of a deadly weapon to commit a felony, and tampering with a witness in connection with the stabbing death of Maria Villarreal. The following factual summary is taken from our prior opinion in State v. Alarcon-Chavez .¹

EVENTS PRIOR TO STABBING

Alarcon-Chavez and Villarreal began dating and moved into an apartment together in January 2009. Alarcon-Chavez was the sole leaseholder for their apartment, which was located in Norfolk, Nebraska. Their relationship ended after Alarcon-Chavez informed Villarreal that he was seeing another woman. After the breakup, Villarreal stayed in the apartment and Alarcon-Chavez moved in with a friend. While he was living with his friend, Villarreal called to threaten him on several occasions. Once, she told him that her boyfriend would "adjust accounts" with him.

On two occasions when he knew Villarreal would not be present, Alarcon-Chavez went back to the apartment he had shared with Villarreal. One time, he noticed another man's clothes.

In late February 2010, Villarreal began dating Aniel Campo Pino, and he moved into the apartment with Villarreal and her 3-year-old son.

On March 9, 2010, Alarcon-Chavez saw Villarreal and Pino at a store. Alarcon-Chavez returned to his friend's house around 7 p.m. and began consuming alcohol. Around 11 p.m., he drove across town to Wal-Mart to purchase more beer. While at Wal-Mart, Alarcon-Chavez saw a set of Sunbeam knives, and he testified he decided to purchase them for cooking purposes. He purchased the knives and beer just after 11:30 p.m. He returned to his friend's house and took the beer inside, but left the knife set in the vehicle.

Alarcon-Chavez knew Villarreal went to work early in the morning. So, around 5 a.m. on March 10, 2010, he drove to the apartment where Villarreal was living. He testified that he intended to tell Villarreal and Pino to get out of his apartment. He explained he did not want to live with his friend anymore because he had been sleeping on the floor and using clothes for a pillow.

STABBING

Alarcon-Chavez arrived at the apartment around 5:10 or 5:20 a.m. He initially got out of the vehicle, but then, after remembering Villarreal's threat that Pino would "adjust accounts" with him, reentered it. Alarcon-Chavez then remembered the knife set, so he opened the package with his teeth and concealed one of the knives on his body.

Alarcon-Chavez entered the apartment and found Villarreal in the kitchen making her lunch. She had a knife in her hand. Villarreal came toward Alarcon-Chavez and grabbed his body and somehow dropped the knife. She was holding Alarcon-Chavez and yelling for the police and for Pino, and Alarcon-Chavez was struggling to escape her grip. Fearing that Pino would attack him, he drew the knife he had concealed on his body. Alarcon-Chavez and Villarreal continued to struggle, and as he tried to get loose, he stabbed Villarreal in the abdomen. Alarcon-Chavez did not remember stabbing her anywhere else. After the stabbing, Villarreal sat on the floor and leaned back onto the carpet. Alarcon-Chavez then heard someone coming and locked the door.

Pino had gone outside before Alarcon-Chavez arrived. He went back to the apartment after he heard Villarreal scream. When he arrived, the door was locked. Villarreal was screaming that he should not come in because a man was stabbing her. Pino told Alarcon-Chavez to come out of the apartment so he could help Villarreal, but Alarcon-Chavez did not respond.... Pino heard Villarreal saying, "Leo, don't kill me, Leo, don't kill me." Alarcon-Chavez then told Villarreal he was going to kill her and said, "I told you not to leave me because if you did this was going to happen to you." Pino told a neighbor to call the police and then retrieved a friend.

Police officers were dispatched to the apartment. One officer knocked at 6:06 a.m. and tried unsuccessfully to open the door. An officer standing outside of the apartment activated a tape recorder. Villarreal can be heard on the recording pleading for help. She told Alarcon-Chavez to go away and not to kill her. She said that she had been stabbed five times and that Alarcon-Chavez was still in the apartment with her. The recording also revealed numerous expressions of pain from Villarreal, several of which occurred just before the officers entered the apartment. Alarcon-Chavez testified that Villarreal was not asking him not to kill her, but, rather, was begging him not to kill himself.

When another officer arrived, he knocked and announced his presence and tried to open the door. Either Pino or his friend told the officers they needed to get inside. The officers entered the apartment by kicking the door several times. When the officers opened the door, they observed Alarcon-Chavez standing over Villarreal's body with a knife in each hand. Alarcon-Chavez was shot with an electric stun gun and handcuffed. He was covered in blood. As Alarcon-Chavez was being taken out of the apartment, Pino's friend asked him "why [he] didn't do this to [Pino and his friend]," and he responded that "he didn't want to do any harm to [them], the problem wasn't with [them]."

Although she was obviously in pain, Villarreal was alert, coherent, and talking when the officers first entered the apartment. Within a few minutes, her color turned to an ash gray and she stopped speaking. There was a large amount of blood around her. She died as a result of multiple stab wounds

.²

Following a jury trial, Alarcon-Chavez was convicted of first degree murder, use of a deadly weapon to commit a felony, and tampering with a witness. We affirmed his convictions on direct appeal.³

Alarcon-Chavez then filed a motion for postconviction relief. The district court appointed new counsel to represent Alarcon-Chavez in the postconviction matter. Alarcon-Chavez was granted leave to amend his postconviction motion several times, and an evidentiary hearing was held on all issues set forth in his fourth amended motion for postconviction relief. In a written order entered April 6, 2016, the district court denied postconviction relief on all grounds. Alarcon-Chavez timely appeals.

II. ASSIGNMENTS OF ERROR

Alarcon-Chavez assigns, restated and summarized, that the district court erred by not finding trial counsel was constitutionally ineffective for failing to (1) "verify, ensure and or preserve" a record was made of voir dire, (2) raise a challenge under Batson v. Kentucky⁴ when the State struck a Hispanic juror from the venire, (3) communicate plea offers, (4) speak with witnesses before trial, (5) advise Alarcon-Chavez of his right to independently test DNA, (6) advise Alarcon-Chavez of his right to depose the State's expert witnesses, and (7) object during trial to the State's questioning of key witnesses and offers of exhibits. He also assigns that the court erred in not finding his constitutional rights were violated because he was unable to understand one of the court interpreters during trial.

III. STANDARD OF REVIEW

In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact.⁵ An appellate court upholds the trial court's findings unless they are clearly erroneous.⁶ In contrast, an appellate court independently resolves questions of law.⁷

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.⁸ When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington ,⁹ an appellate court reviews such legal determinations independently of the lower court's decision.¹⁰

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law.¹¹ When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion.¹²

IV. ANALYSIS

1. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Alarcon-Chavez was represented by the same three attorneys at trial and on direct appeal. As such, this postconviction proceeding is his first opportunity to assert that his attorneys were ineffective.¹³

In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden first to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case.¹⁴ In a nonplea context, the defendant must show a reasonable probability that the result would have been different had counsel not performed deficiently.¹⁵ The two prongs of this test, deficient performance and prejudice, may be addressed in either order.¹⁶ The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable.¹⁷ When reviewing claims of ineffective assistance, an appellate court will not second-guess trial counsel's reasonable strategic decisions. And we must assess trial counsel's performance from the counsel's perspective when the counsel provided the assistance.¹⁸

In...