State v. Galindo
| Docket Number | S-21-419. |
| Decision Date | 01 September 2023 |
| Citation | 315 Neb. 1,994 N.W.2d 562 |
| Parties | STATE of Nebraska, appellee, v. Jorge GALINDO, appellant. |
| Court | Nebraska Supreme Court |
Adam J. Sipple, Oakland, of Sipple Law, and David A. Tank, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith, Lincoln, for appellee.
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.
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).
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 nonstatutory mitigating circumstances.The sentencing panel then
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.SeeState 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 allegedly included purchasing and using or being in the presence of illegal drugs, socializing with the drug ring members, using them as informants, tipping them off about investigations, protecting them from prosecution, and doing other favors.Galindo contended that his aggravation hearing presented an opportunity for the county attorney and his criminal associates to trade favors: In exchange
for the criminal associates’ testimony against Galindo, Galindo claimed, the county attorney would recommend leniency in their criminal cases.
Galindo's postconviction motion asserted that circumstances suggested the county attorney directed the cell placement of certain inmates, some connected to the drug ring, with the intention of either eliciting incriminating statements from Galindo and an accomplice or fabricating false testimony against Galindo.The county attorney called some of those inmates—Animas, Lopez, and Abendano—as witnesses against Galindo relative to the Lundell murder.Galindo also made detailed allegations about the outcomes of the informants’ own criminal cases, which Galindo characterized as relatively favorable to them and at the behest of the county attorney.Further, Galindo alleged that the county attorney protected Abendano from federal prosecution to avoid exposing the county attorney's own misdeeds to federal scrutiny.According to Galindo's motion, many of these details were either withheld from him by the State or inadequately pursued by his counsel.
The district court denied postconviction relief for all the claims, without an evidentiary hearing, and Galindo now appeals that order.We recount additional relevant details in the analysis below.
Galindo assigns, condensed and restated, that the district court erred in the following ways: (1) by denying an evidentiary hearing on Galindo's prosecutorial misconduct claims involving (a) failing to disclose material evidence, (b) orchestrating the solicitation from Galindo of details about Lundell's death, (c) knowingly introducing false evidence, and (d) pursuing the case despite being burdened by a conflict of interest; (2) by denying an evidentiary hearing on Galindo's ineffective assistance of counsel claims involving (a) forgoing a plea disposition, (b) allowing Galindo to assist in locating
Lundell's body, (c) representing Galindo despite a conflict of interest, (d) failing to subject the Lundell allegation to meaningful adversarial testing, (e) failing to raise on appeal objections to jury instructions regarding the aggravating circumstance that the murder was especially heinous, atrocious, or cruel or manifested exceptional depravity, (f) failing to effectively pursue the mitigating circumstances of Galindo's youth, remorse, and drug use, and (g) failing to raise on appeal the denial of a motion to continue to prepare a defense to the Lundell allegation; and (3) by denying relief for other alleged violations of Galindo's constitutional rights involving (a) Galindo's age at the time of the offense, (b) Nebraska's three-judge sentencing procedure, (c) victim impact statements, and (d) the proportionality of the death sentences.
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.State v. Lotter , 311 Neb. 878, 976 N.W.2d 721(2022).
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.Id.
Viewed from afar, Galindo's claims for postconviction relief are familiar.He generally asserts the district court erred in denying postconviction relief without first conducting an evidentiary hearing on multiple claims of prosecutorial misconduct, ineffective...
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