State v. Escamilla

• Decision Date: 28 January 1994
• Docket Number: No. S-92-347,S-92-347
• Citation: 511 N.W.2d 58,245 Neb. 13
• Parties: STATE of Nebraska, Appellant, v. Mario ESCAMILLA, Appellee.
• Court: Nebraska Supreme Court

Page 58

511 N.W.2d 58

245 Neb. 13

STATE of Nebraska, Appellant, v.Mario ESCAMILLA, Appellee.

No. S-92-347.

Supreme Court of Nebraska.

Jan. 28, 1994.

Syllabus by the Court

1.Postconviction: Appeal and Error.On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous.

2.Postconviction: Effectiveness of Counsel: Proof.In order to secure postconviction relief on the basis of ineffective counsel, a defendant must show that (1)counsel's performance was deficient and (2) such deficient performance prejudiced the defense.

3.Pleas: Effectiveness of Counsel.A plea of guilty will be found to be freely and voluntarily entered upon the advice of counsel if that advice is within the range of competence demanded of attorneys in criminal cases.

4.Effectiveness of Counsel.In any effectiveness of counsel case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

5.Pleas: Effectiveness of Counsel: Proof.In order to satisfy the prejudice requirement in the context of a plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled and would have insisted upon going to trial.

6.Rules of Evidence: Words and Phrases.Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

7. Evidence.Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case.

8.Sexual Assault: Self-Defense: Rules of Evidence.A victim's homosexuality, without some evidence that the defendant was resisting a homosexual assault, is not material and therefore not relevant.

9.Homicide: Self-Defense: Rules of Evidence: Other Acts: Proof.Although in a homicide case a defendant may show the dangerous and turbulent character of the victim, this may be done only after laying a foundation by evidence tending to show self-defense.

10.Self-Defense: Rules of Evidence: Other Acts: Proof.Evidence of a person's character or a trait of his or her character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion, except evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.Neb.Rev.Stat. § 27-404(Reissue 1989).

11.Rules of Evidence: Other Acts: Proof.Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith.It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.Neb.Rev.Stat. § 27-404(Reissue 1989).

12.Homicide: Self-Defense: Rules of Evidence: Other Acts.Where a defendant claims that the act of killing a victim was the result of a violent and overriding reaction to a homosexual approach by the victim, evidence of the victim's prior similar homosexual activities may be admissible under certain circumstances as corroborative of the defendant's claim that there was a lack of deliberation or premeditated malice on his or her part necessary to convict of first degree murder.

13.Attorney and Client: Pleas.When a defendant pleads guilty on advice of counsel, the defendant's attorney has the duty to advise the defendant of the available options and possible consequences.

14.Confessions: Miranda Rights.Although an admission made by a suspect who is in custody and without the benefit of the Miranda warnings must be suppressed, the admissibility of any statements made after the Miranda warnings have been given must depend upon the circumstances and a determination of whether the statements were knowingly and voluntarily made.

15.Due Process: Identification Procedures.Suggestiveness alone in a courtroom identification does not violate due process so long as the identification possesses sufficient aspects of reliability.

Gary E. Lacey, Lancaster Co. Atty., and Joseph P. Kelly, Lincoln, for appellant.

Rodney M. Confer, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, and LANPHIER, JJ.

HASTINGS, Chief Justice.

The State of Nebraska appeals an order of the Lancaster County District Court which granted defendantMario Escamilla's motion for postconviction relief, set aside his conviction of murder in the first degree, and permitted him to withdraw his plea of guilty.The issue tried before the district court was whether Escamilla pled guilty to first degree murder because of ineffective assistance of counsel.

On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous.State v. Johnson, 243 Neb. 758, 502 N.W.2d 477(1993);State v. Moss, 240 Neb. 21, 480 N.W.2d 198(1992).

FACTS

Shortly after 9 a.m. on July 3, 1986, the male victim was found dead in his home at 3035 Vine Street in Lincoln.It was later determined that the cause of death was hemorrhaging from multiple stab wounds.

Later that morning, Officer Steven Standley of the Lincoln Police Department noticed Mario Escamilla at the intersection of 70th and Fremont Streets in Lincoln.Standley had heard an earlier radio transmission describing a suspect of an investigation of a crime in the area of 30th and Vine and contacted Escamilla because he matched that description.Escamilla told the officer his name and address and that he was on parole because he had stabbed a man in Scottsbluff as a result of a sexual assault that had occurred when he was a child.Standley called Sgt. Kenney Schacht at the crime scene at Vine Street to tell him about Escamilla.Standley told Schacht that he was a friend of the person Escamilla was living with and that he believed Escamilla could be contacted later if necessary.Schacht then advised him that Escamilla could be released.

However, after learning that Escamilla was on parole for a stabbing that appeared to be sexually motivated, Schacht asked Standley to recontact Escamilla and ask him to come to 30th and Vine to be interviewed.Standley and Officer Mark Johnson contacted Escamilla at his residence and asked him to go to 30th and Vine, and he agreed to do so.Escamilla was patted down before being placed in the police vehicle.He was interviewed by Lt. Lee Wagner at the crime scene, and he then agreed to go to police headquarters for further questioning.

After arriving at police headquarters, Escamilla was interviewed by Standley, and later by Sgt. Tim Domgard.Escamilla initially denied involvement with the homicide, but later admitted that he"did it."At that point, he was advised of his Miranda rights and was asked to give a tape-recorded statement, which he agreed to do.

According to his statement, Escamilla was walking by the victim's house when the man spoke to him and said that he looked like he was lost.Escamilla then asked if he could use a telephone, and the man agreed that he could.While Escamilla was using the phone, he heard the man shut and lock the door, and then the man came up behind him, rubbed up against him, and tried to touch his scrotum.Escamilla stated that he reacted by picking up a knife that he saw on the kitchen counter and stabbing the man in the neck, and the victim fell to the floor.Escamilla recalled being raped when he was 6 years old, which recollection caused him to become more aggressive with the victim.He stated that the victim enjoyed being called a "faggot" and told him that he would do anything Escamilla wanted and that he loved him.Escamilla said that he got more aggressive and told the victim to take down his pants.The victim told him that he, Escamilla, did not have to stab him and that he would do anything Escamilla wanted.Escamilla then took the victim's pants down a little bit, "Didn't really want to do it because that's not my thing, but to push off the aggressiveness, to make him feel hurt before I did."Escamilla further stated that he"just got on top get [sic] rubbed against him but, uh, didn't not have no anal sex or nothing like that."However, Escamilla admitted that he took his own pants down a little bit, and "I put a little [Vaseline] on there ... on his anal [sic]."Escamilla said that he continued to stab the victim and that then, regaining his "senses,"he unlocked the door and ran.At the time of Escamilla's plea, the county attorney, in reciting a factual basis for the plea, stated that Jody Toledo, at whose home Escamilla was visiting the night before the killing and the early morning of the day of the killing, would say that she had two steak knives that she had obtained in Arizona.At the scene of the murder, the police found a knife that matched a knife found in Toledo's apartment.

The murder victim was found nude from the waist down except for blue socks on each foot and a pair of boxer shorts around the left ankle.A dark brown pubic hair was found on his bare posterior.Laboratory examination disclosed the hair possessed characteristics similar to the known pubic hairs of Escamilla.A jar of Vaseline was found floating in the stool in the bathroom.However, the autopsy report disclosed no Vaseline on the victim's body.

Escamilla was charged with first degree murder and use of a deadly weapon to commit a felony.In July 1986, two attorneys from the public defender's office were assigned to represent him....