State v. Galindo

• Docket Number: S-21-419
• Decision Date: 01 September 2023
• Citation: 315 Neb. 1
• Parties: State of Nebraska, appellee, v. Jorge Galindo, appellant.
• Court: Nebraska Supreme Court

1

315 Neb. 1

State of Nebraska, appellee,
v.
Jorge Galindo, appellant.

No. S-21-419

Supreme Court of Nebraska

September 1, 2023

1. Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.

2. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which an appellate court reviews independently of the lower court's ruling.

3. Postconviction: Constitutional Law. Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.

4. Postconviction: Constitutional Law: Proof. An evidentiary hearing is not required on a motion for postconviction relief when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief.

5. Postconviction. The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity.

6. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues that were known to the defendant and which were or could have been litigated on direct appeal.

7. Constitutional Law: Right to Counsel: Conflict of Interest. A conflict of interest which adversely affects a lawyer's performance violates the client's Sixth Amendment right to effective assistance of counsel.

2

[315 Neb. 2] 8. Effectiveness of Counsel: Conflict of Interest: Words and Phrases. The phrase "conflict of interest" denotes a situation in which regard for one duty tends to lead to disregard of another; a conflict of interest places a defense attorney in a situation inherently conducive to divided loyalties.

9. Postconviction: Effectiveness of Counsel: Conflict of Interest: Proof. In order to obtain relief in a postconviction action based upon the alleged conflict of interest of trial counsel, the defendant must show an actual, as opposed to an imputed, conflict of interest.

10. Postconviction. An evidentiary hearing is not required when a motion for postconviction relief alleges only conclusions of fact or law.

11. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

12.__:__ . To show that counsel's performance was deficient, the defendant must show counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

13. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. To show prejudice under the prejudice component of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome.

14. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

Appeal from the District Court for Madison County: Robert R. Steinke, Judge. Affirmed.

Adam J. Sipple, of Sipple Law, and David A. Tank for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith for appellee.

3

[315 Neb. 3] Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Stratman and Burns, District Judges.

Per Curiam.

Jorge Galindo appeals the district court order that overruled his motion for postconviction relief without an evidentiary hearing. All of Galindo's claimed errors challenge his five death sentences for murders committed during a bank robbery. Upon our de novo review, we affirm.

I. BACKGROUND

On September 26, 2002, Galindo, Erick Vela, and Jose Sandoval entered a bank in Norfolk, Nebraska. Their purpose was to carry out robbery plans that Sandoval and Galindo had been formulating for at least a month. In short order, they shot and killed four bank employees and one customer, with Galindo firing the shots that killed one of those five people. Another customer walked in but was able to escape amid at least two shots fired at her by Galindo. Galindo's gunfire did not hit the customer, but she was injured by shattered glass. One of Galindo's bullets struck near the drive-through window of a fast-food restaurant across the street from the bank. Galindo and his accomplices then fled, less than a minute after entering the bank. They had taken nothing. By the time they were apprehended, they had broken into two residences and stolen two vehicles; Galindo acquired the keys to the first vehicle at gunpoint.

Later that day, Galindo, Vela, and Sandoval were apprehended by law enforcement officers, soon after throwing their guns from the second vehicle. Galindo eventually led law enforcement to the guns. He also identified a photograph of an additional accomplice.

A jury found Galindo guilty of five counts of first degree murder, among other offenses. Galindo was sentenced to death for each of the five murders in accordance with the procedures set forth in Neb. Rev. Stat. § 29-2519 et seq. (Reissue 2008).

4

[315 Neb. 4] Before the death sentences were pronounced, a jury found that evidence at the aggravation hearing demonstrated five statutory aggravating circumstances existed for each of the five bank robbery murders: (1) the murder was committed in an effort to conceal the identity of the perpetrator; (2) the murder was especially heinous, atrocious, or cruel or manifested exceptional depravity; (3) at the time of the murder, another murder had been committed; (4) at the time of the murder, Galindo knowingly created a great risk of death to at least several persons; and (5) Galindo had a substantial prior history of serious assaultive or terrorizing criminal activity, based on evidence of his involvement in the murder of Travis Lundell, committed before the bank robbery. See § 29-2523.

Regarding the Lundell murder, the State presented evidence at the aggravation hearing that Galindo recruited Vela to participate in the bank robbery and that to demonstrate Vela was worthy of the scheme, Vela killed Lundell with Galindo's and Sandoval's assistance. Cortney Barritt, who was Galindo's girlfriend at the time of the bank robberies, testified that on the day Lundell died, Galindo told her that he, Vela, and Sandoval had killed Lundell by strangulation and buried his body in a location Galindo later pointed out to Barritt. Evidence showed that Galindo eventually led law enforcement to the location where Lundell's body was recovered. The State's evidence at the aggravation hearing also included the testimony of witnesses who were incarcerated in the same facility as Galindo and his accomplices after the bank robbery: Daniel Animas, Miguel Lopez, and Hector Abendano. Those witnesses testified that during conversations with Galindo, he said that he held Lundell's legs while Vela strangled Lundell and that he helped dispose of Lundell's body.

After the jury found aggravating circumstances existed, the three-judge sentencing panel in turn conducted a hearing to determine the existence of statutory and nonstatu-tory mitigating circumstances. The sentencing panel then

5

[315 Neb. 5] weighed the mitigating circumstances it found against the aggravating circumstances found by the jury and conducted a proportionality review to determine whether the death penalty should be imposed. Based upon this analysis, it sentenced Galindo to death for each of the five bank robbery murders.

This court affirmed on direct appeal, where Galindo was represented by the same counsel who represented him at trial. See State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).

In 2011, Galindo timely moved for postconviction relief, pro se. The district court denied relief without an evidentiary hearing, and Galindo appealed. Upon the State's suggestion and Galindo's stipulation, we summarily vacated the judgment and remanded the cause. Consistent with our directions on remand, the district court appointed counsel.

In 2019, Galindo, represented by appointed counsel, filed his first amended motion for postconviction relief. Galindo's postconviction claims fell into three general categories: (1) prosecutorial misconduct claims, (2) ineffective assistance of counsel claims, and (3) additional claims.

Many of Galindo's postconviction claims related to the Lundell murder, a homicide for which Galindo was not convicted but which, as noted, was the basis for an aggravating circumstance supporting the death penalty for the bank robbery murders. We summarize Galindo's factual allegations in more detail in the sections below. But broadly stated, Galindo's postconviction motion claimed that after his direct appeal, he learned that at the time of his trial, the county attorney was himself the subject of an ongoing criminal investigation that linked him to a drug ring. The county attorney's involvement with the drug ring...