State v. Alarcon–Chavez

Decision Date17 August 2012
Docket NumberNo. S–11–779.,S–11–779.
Citation821 N.W.2d 359,284 Neb. 322
PartiesSTATE of Nebraska, appellee, v. Leodan ALARCON–CHAVEZ, appellant.
CourtNebraska Supreme Court

284 Neb. 322
821 N.W.2d 359

STATE of Nebraska, appellee,
v.
Leodan ALARCON–CHAVEZ, appellant.

No. S–11–779.

Supreme Court of Nebraska.

Aug. 17, 2012.


[821 N.W.2d 360]



Syllabus by the Court

[284 Neb. 322]1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

2. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, regarding which an appellate court is obligated to reach a

[821 N.W.2d 361]

conclusion independent of the determination reached by the trial court.

3. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.

4. Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor's remarks were improper. It is then necessary to determine the extent to which the improper remarks had a prejudicial effect on the defendant's right to a fair trial.

5. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may have a fair and [284 Neb. 323]impartial trial, and prosecutors are not to inflame the prejudices or excite the passions of the jury against the accused.

6. Trial: Prosecuting Attorneys: Juries. A prosecutor's conduct that does not mislead and unduly influence the jury does not constitute misconduct.

7. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial as a whole.

8. Trial: Prosecuting Attorneys: Appeal and Error. When a prosecutor's conduct was improper, an appellate court considers the following factors in determining whether the conduct prejudiced the defendant's right to a fair trial: (1) the degree to which the prosecutor's conduct or remarks tended to mislead or unduly influence the jury, (2) whether the conduct or remarks were extensive or isolated, (3) whether defense counsel invited the remarks, (4) whether the court provided a curative instruction, and (5) the strength of the evidence supporting the conviction.


Melissa A. Wentling, Madison County Public Defender, Kyle M. Melia, and Todd W. Lancaster, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.


WRIGHT, CONNOLLY, McCORMACK, MILLER–LERMAN, and CASSEL, JJ., and SIEVERS, Judge.

PER CURIAM.

Maria Villarreal died after sustaining multiple stab wounds on March 10, 2010. Leodan Alarcon–Chavez was convicted of first degree murder, use of a deadly weapon to commit a felony, and tampering with a witness. In this direct appeal, Alarcon–Chavez contends that the district court erred in overruling his motion to suppress evidence and in giving a jury instruction that incorrectly stated the law. He also asserts that the prosecutor's closing remarks were so inflammatory that reversal under the plain error standard is warranted. We affirm.

BACKGROUND
Events Prior to Stabbing

Alarcon–Chavez and Villarreal began dating and moved into an apartment together in January 2009. Alarcon–Chavez was [284 Neb. 324]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

[821 N.W.2d 362]

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.

[284 Neb. 325]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 left for a few minutes to give Alarcon–Chavez an opportunity to leave, but Alarcon–Chavez was still inside when Pino returned. 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

[821 N.W.2d 363]

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.

[284 Neb. 326]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. Her most traumatic wound traversed the upper right side of her abdomen. The cut went through the right lobe of her liver and pierced her inferior vena cava. The wound caused a massive intra-abdominal hemorrhage. She also had stab wounds on the right side of her back, on her right tricep, and under her left armpit. She had several deep cuts on her hands which were described at trial by one of the officers as classic defense wounds. The officer explained, “[I]f somebody is attacking you with a knife, your natural reaction is to protect your body [by] bring[ing] your hands up.”

Investigation

Several items from the crime scene underwent DNA testing. Villarreal was included as a match for blood found on two knives discovered at the scene, and testing revealed an infinitely low possibility that the blood belonged to anyone else. Villarreal was also a match for blood found on a blue shirt Alarcon–Chavez was wearing at the time of...

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    ...Conviction and Sentence The court states the facts as they were recited by the Nebraska Supreme Court in State v. Alarcon-Chavez, 821 N.W.2d 359, 361-65 (Neb. 2012) (affirming Alarcon-Chavez's convictions on direct appeal). (Filing No. 10-13.) See Bucklew v.Luebbers, 436 F.3d 1010, 1013 (8t......
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