State v. Lopez, S-06-1251.

CourtSupreme Court of Nebraska
Citation274 Neb. 756,743 N.W.2d 351
Docket NumberNo. S-06-1251.,S-06-1251.
PartiesSTATE of Nebraska, Appellee v. Norma E. LOPEZ, Appellant.
Decision Date04 January 2008

James R. Mowbray and Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and Erin E. Leuenberger, Lincoln, for appellee.




Norma E. Lopez was convicted of first degree murder and use of a weapon to commit a felony. Her convictions and sentences were affirmed by this court in State v. Lopez,1 Lopez filed a verified motion for postconviction relief which was denied after an evidentiary hearing. Lopez appeals.


The facts surrounding Lopez' convictions were set forth in Lopez. We supplement those facts as necessary.

On March 25, 1994, the defendant had a party in her trailer home. During the course of the party, the defendant and a guest, Sotero Gandarilla, started to argue. The argument continued while the defendant and Gandarilla went into a bedroom in the defendant's home. The defendant's daughter was sitting in the bedroom, and the defendant asked the daughter to find the bullets for her gun. The daughter told the defendant that she did not know where the bullets were and then went to a neighbor's house for help.

Upon returning to the home of the defendant, the daughter heard a gunshot. Upon entering the bedroom, witnesses saw Gandarilla's body on the floor and the defendant holding a gun.2

At this point, the witnesses who saw Lopez standing over Sotero Gandarilla left Lopez' home. Lopez' daughter then returned with the neighbor. The neighbor testified that she asked Lopez "`[w]hy did you do it?'" Lopez responded that Gandarilla had told her that "she was not . . . the woman for [him]." The neighbor then helped Lopez and four of Lopez' children get back to the neighbor's home, where Lopez attempted to call relatives. According to the neighbor, Lopez was not able to dial the telephone, nor was Lopez able to provide to the neighbor the correct telephone number so that the neighbor could place the call for Lopez. The neighbor testified that Lopez then left the neighbor's home, apparently to retrieve a fifth daughter who remained in Lopez' home.

At about the same time, the record establishes that

[t]he police [had] responded to a call of someone hearing a gunshot. An officer went to the defendant's home. The officer knocked and the defendant appeared. The officer asked if he could enter, and the defendant replied that he could not and that she would check the trailer for him. Soon after, the defendant returned to the front door of the trailer and stated to the officer, "He's dead; he's been shot." She initially refused to give the name of the victim.

The officer asked, "Can I come in and check?" to which the defendant answered, "Yes, you can." The officer found the body. The officer asked her the identity of the individual on the floor and the defendant's name and her date of birth, to which the defendant responded, "What? Do you think I shot him?" At that point, the officer informed the defendant of her Miranda rights. The officer asked if the defendant waived her rights and wanted to talk to him, to which she replied, "Yeah." It appeared to the officer that the defendant had been drinking and had apparently urinated on herself, but that she understood the questions and the situation. Several times during the preliminary investigation, the defendant told the officer, "Why don't you just go ahead and shoot me?" . . .

At that point, Lt. Rodger L. Williams arrived to take over the investigation. A high-powered rifle with one spent round in its chamber was found in the bedroom.

The defendant was jailed. An interview of the defendant by Williams took place the next morning at 8 o'clock at the jail at the defendant's request. The defendant signed a Miranda rights waiver. During the interview, Williams asked if the defendant knew why the shooting had occurred, to which the defendant stated, "Yes, because I shot him for no goddamn reason. Just for . . . being drunk and stupid I know." In response to a question as to whether the events of the previous evening occurred because the defendant had been drinking she responded, "Oh, no, no, no. I have been that drunk before and never pulled a gun on my old man." The ammunition for the gun was found following a search pursuant to a search warrant.

It was later determined that "[t]he death of Sotero Gandarilla [was] due to a perforating gunshot wound to the neck, which caused a marked destruction of the soft tissue of the neck, severed the internal carotid artery, severed the internal and external jugular veins and, also, severed the larynx."3

At trial, Lopez was represented by two attorneys with the Hall County public defender's office. That office also represented Lopez on direct appeal. This court affirmed Lopez' convictions.

On April 1, 2003, Lopez filed a verified motion for postconviction relief. An amended motion was filed on March 5, 2004. That motion alleged ineffective assistance of counsel in several particulars. The district court granted an evidentiary hearing. At the hearing, depositions of Lopez and both trial counsel were introduced into evidence. In addition, Lopez and lead counsel testified. On October 17, 2006, Lopez' motion was denied. In its order, the district court specifically addressed Lopez' contention that a plea agreement was not communicated to her, finding that Lopez suffered no prejudice from trial counsel's deficiencies. As to Lopez' other allegations, the district court generally concluded that it could not "find from the evidence that counsel's performance was deficient and that any deficient performance prejudiced the defense."


On appeal, Lopez argues that the district court erred in denying her motion for postconviction relief. In particular, Lopez contends, restated and renumbered, that the district court erred by not finding that her trial counsel was ineffective in (1) failing to adequately inform her of plea offers and in failing to pursue plea offers on her behalf, (2) failing to object to the State's reliance of Lopez' invocation of her right to remain silent, (3) failing to challenge the State's contention that Lopez had animosity or malice against Gandarilla, (4) failing to adequately present opening statements, (5) failing to properly challenge the testimony of the State's fingerprint evidence expert and in failing to present expert testimony to counter the State's expert, and (6) failing to adequately advise Lopez of her right to testify in her own behalf.


Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.4 When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error.5 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,6 an appellate court reviews such legal determinations independently of the lower court's decision.7


On appeal, Lopez assigns as error that the district court failed to find that her trial counsel was ineffective in several particulars. In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel at trial or on direct appeal, the defendant has the burden, in accordance with Strickland,8 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 in the area.9 Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case.10 In order to show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.11 The two prongs of this test, deficient performance and prejudice, may be addressed in either order. This standard also applies to guilty pleas based on ineffective assistance of counsel12 and in cases involving the alleged failure to communicate the offer of a plea agreement.13

In determining whether a trial counsel's performance was deficient, there is a strong presumption that such counsel acted reasonably.14 When reviewing a claim of ineffective assistance of counsel, an appellate court will not second-guess reasonable strategic decisions by counsel.15

Failure to Communicate Plea Agreement.

Lopez first argues that she received ineffective assistance of trial counsel with respect to plea negotiations. In particular, Lopez contends that a plea agreement for second degree murder was not communicated to her.

At the postconviction evidentiary hearing, the parties stipulated that an offer of second degree murder and use of a weapon had been communicated to defense counsel prior to trial. In overruling Lopez' motion with respect to this allegation, the district court, in keeping with this stipulation, found that Lopez' trial counsel failed to convey that agreement to Lopez. However the district court concluded that Lopez was not prejudiced by this failure, as Lopez had not demonstrated that she would have accepted the offer.

At the evidentiary hearing, lead counsel testified that he recalled the State's making one plea offer for first degree murder in which the State would decline to pursue the death penalty. Lead counsel indicated he did not believe this offer was a good offer, as he found it unlikely that Lopez would be sentenced to death, but he brought the offer to Lopez. He recalled that Lopez thought about the offer for a few days, but indicated that Lopez was "adamant" about rejecting the offer. Second chair counsel, in his deposition, echoed this, testifying that Lopez wanted to go to trial...

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