State v. Avina-Murillo , 301 Neb. 185 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/23/2018 12:11 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. AVINA-MURILLO
Cite as 301 Neb. 185
State of Nebraska, appellee, v. Veronica
P. Avina-Murillo, appellant.
___ N.W.2d ___
Filed September 28, 2018. No. S-17-1302.
1. Motions for New Trial: Time. Where there is no factual dispute, the
timeliness of a motion for new trial presents a question of law.
2. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
3. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
4. Motions for New Trial: Verdicts: Time. According to Neb. Rev.
Stat. § 29-2103(3) (Reissue 2016), a motion for new trial based on the
grounds set forth in Neb. Rev. Stat. § 29-2101(1) through (4) or (7)
(Reissue 2016) shall be filed within 10 days after the verdict was ren-
dered unless such filing is unavoidably prevented.
5. Trial: Juries: Verdicts. A jury’s action cannot become a verdict until
it is finally rendered in open court and received and accepted by the
trial judge.
6. Motions for New Trial: Verdicts: Time. Unless one of the two statu-
tory exceptions applies, a motion for new trial filed more than 10 days
after the verdict has no effect.
7. Motions for New Trial: Words and Phrases. “[U]navoidably pre-
vented” as used in Neb. Rev. Stat. § 29-2103 (Reissue 2016) refers
to circumstances beyond the control of the party filing the motion for
new trial.
8. Motions for New Trial: Time: Appeal and Error. A motion for new
trial not filed in conformity with the statutory requirements as to time
may not be considered by an appellate court on review.
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STATE v. AVINA-MURILLO
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9. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant must raise on direct appeal any issue of trial counsel’s ineffective
performance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred.
10. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
11. Effectiveness of Counsel: Conflict of Interest. The right to effective
assistance of counsel entitles the accused to his or her counsel’s undi-
vided loyalties, free from conflicting interests.
12. Effectiveness of Counsel: Proof. Generally, 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.
13. ____: ____. To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
14. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
15. Effectiveness of Counsel: Conflict of Interest: Presumptions.
Prejudice is presumed only if the defendant demonstrates that counsel
actively represented conflicting interests and that an actual conflict of
interest adversely affected his lawyer’s performance.
16. Effectiveness of Counsel: Conflict of Interest: Presumptions: Case
Disapproved. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018);
State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015); and State
v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012), are disapproved
to the extent they can be read to always require a presumption of
prejudice where counsel’s conflict of interest does not involve mul-
tiple representation.
17. Trial: Effectiveness of Counsel: Presumptions. In determining whether
trial counsel’s performance was deficient, there is a strong presumption
that counsel acted reasonably.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
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Nebraska Supreme Court A dvance Sheets
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STATE v. AVINA-MURILLO
Cite as 301 Neb. 185
Christopher J. Roth, of Forney Roth, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Freudenberg, JJ.
Cassel, J.
INTRODUCTION
After being convicted by a jury and sentenced in a criminal
case, Veronica P. Avina-Murillo brings this direct appeal. We
cannot review the denial of her motion for new trial, because
the motion was not timely. We review her ineffective assist­
ance claims, stemming from her initial trial counsel’s alleg-
edly unethical conduct—which she characterizes as a con-
flict of interest. A central question is whether the Strickland
v. Washington1 standard applies or whether prejudice should
be presumed. On these facts, we conclude that Strickland
applies and that the record is insufficient to resolve her claims.
We affirm.
BACKGROUND
The State charged Avina-Murillo with negligent child abuse
resulting in serious bodily injury based on events occurring
on April 2, 2015. On that day, J.P.’s mother took 6-month-old
J.P. to Avina-Murillo’s house to be watched. While there, J.P.
began to act abnormally. A doctor later diagnosed J.P. with
abusive head trauma.
The district court conducted a jury trial. Prior to the intro-
duction of evidence, the court sustained the State’s motion to
sequester all of the witnesses.
During opening statements, Avina-Murillo’s counsel advised
the jury that it would hear from J.P.’s parents. Counsel outlined
the parents’ testimonies:
1
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
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STATE v. AVINA-MURILLO
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[The parents] are going to testify that their child was not
fine the morning that she was dropped off. The parents
are going to tell you that they took their child to the hos-
pital multiple times and were given different answers by
different individuals at the hospitals weeks prior to April
2nd[, 2015].
....
The parents will testify that . . . Avina[-Murillo] was
not with the child seconds to minutes before. . . . The
parents will testify that their child was not with . . .
Avina[-Murillo] during that time.
The parents will testify contrary to what you just heard,
actually. The parents will testify that when mother came
to pick child up, child was sleeping like any other time.
Mom — Mother spoke to [Avina-Murillo] for some time,
10, 15 minutes, nothing, child’s sleeping. Mom then
drives to house. . . . [S]he will tell you 10 to 15 minutes
more driving. We’re not at 30 minutes.
She will then testify that when she walked into the
house, Dad wasn’t there. Dad came in shortly thereafter,
but some more time passed, ten minutes. They then talked
about their day and about whatever else. They’ll both tell
you this. More time passes.
Approximately — approximately, 45 minutes to an
hour later, the baby wakes up. They notice baby is not as
they would expect at that point. They go to — well, to
see their — wasn’t the ER, but it was to see a physician
before they were transferred. The evidence you will hear
is not like the preview you were just given.
According to the evidence, at approximately 8 a.m. on
April 2, 2015, J.P.’s mother took J.P. to Avina-Murillo’s house.
J.P., who is Avina-Murillo’s niece, appeared to be fine. But at
approximately 10 a.m., Avina-Murillo noticed that J.P. looked
listless, that “her eyes did not look normal,” and that “[s]he
was touching her right ear quite a bit.” A detective testified that
Avina-Murillo told him J.P. “became lethargic, moaning, and
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STATE v. AVINA-MURILLO
Cite as 301 Neb. 185
. . . the eyes would move in opposite directions.” According
to the detective, Avina-Murillo indicated to him that she knew
there was something wrong with J.P. at that point in time. But
she did not believe it was anything serious or grave.
According to Avina-Murillo, J.P. had exhibited similar
behavior “[d]ays before.” In mid-March 2015, J.P. experienced
vomiting and diarrhea. J.P.’s parents took her to the emergency
room two or three times, and J.P. was diagnosed with a viral
illness. But during a followup visit 2 to 3 days prior to April 2,
J.P. looked well and was no longer vomiting.
Avina-Murillo called J.P.’s mother to let her know that J.P.
“was not acting right.” She told J.P.’s mother that she believed
J.P. was sick like J.P. had been earlier and that J.P. might have
“gotten some air in her ear.” In response, J.P.’s mother told
Avina-Murillo to administer Tylenol for ear pain and to put
cotton in J.P.’s ear with a little bit of “vapor rub.” After Avina-
Murillo did so, J.P. drank her bottle and fell asleep. After noon,
J.P.’s mother arrived to take J.P. home.
At approximately 4:50 p.m., J.P.’s parents took J.P. to a doc-
tor. At that time, J.P. was lethargic, crying, and inconsolable.
She had symptoms indicating increased pressure in the brain.
Intracranial pressure can cause brain damage and is a poten-
tially life-threatening injury. A CT scan revealed a subdural
hematoma, i.e., bleeding on the inside of the brain. The CT
scan showed both newer and older bleeding. Newer bleeding is
bleeding typically within the past 24 hours, while older bleed-
ing is generally 48 to 72 hours old or older.
A child abuse pediatrician believed that J.P. most likely suf-
fered a rotational or shaking injury. A different doctor testified
that the injury revealed on the CT scan would have required sig-
nificant force and that symptoms would have appeared “fairly
shortly after onset of this type of bleeding.” The defense’s
expert opined that it was not possible to determine the specific
time that an acute subdural hematoma occurred.
During the trial, the district court made a record after an
issue arose. The court recounted that there was a no contact
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STATE v. AVINA-MURILLO
Cite as 301 Neb. 185
order prohibiting Avina-Murillo from communicating with J.P.,
that there was an order of sequestration as to any witnesses,
and that the State had listed J.P.’s parents as witnesses. The
prosecutor then stated that over the lunch hour, Avina-Murillo
and her counsel were observed having lunch together with J.P.
and J.P.’s parents.
Avina-Murillo’s counsel offered a different version of
events. He explained that at some point while he, his assist­
ant, Avina-Murillo, and Avina-Murillo’s husband were hav-
ing lunch, J.P.’s parents entered the restaurant. According to
counsel, “Nothing between them was discussed.” But counsel
stated that after talking to Avina-Murillo and in order “to
essentially keep this clean,” the defense would not call either
parent to testify.
The court and Avina-Murillo’s counsel then engaged in a
colloquy regarding the voluntariness of the decision not to call
the parents as witnesses. Avina-Murillo’s counsel informed the
court that he had spoken to Avina-Murillo “before Your Honor
came out” and that the decision not to call J.P.’s parents as wit-
nesses was Avina-Murillo’s free and voluntary act.
Later, while the jury was deliberating, the court held another
hearing at the State’s request regarding the lunch incident.
Video acquired from the restaurant contradicted what Avina-
Murillo’s counsel reported to the court. The video showed
defense counsel, his assistant, Avina-Murillo, J.P., and J.P.’s
parents all surrounding the same table, having lunch together.
The State requested that sanctions be ordered against defense
counsel for encouraging the violation of the no contact order
and for giving the court false information.
On Friday, September 29, 2017, the jury returned a guilty
verdict, and we describe in more detail below the proce-
dures employed by the court. On that date, the court signed a
“Judgment on Conviction,” but this document did not impose
any sentence. It was not filed until October 3.
On Wednesday, October 11, 2017, Avina-Murillo moved
for a new trial. The motion alleged that irregularities in the
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STATE v. AVINA-MURILLO
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proceedings occurred and that Avina-Murillo was prevented
from having a fair trial.
In November 2017, the court imposed a sanction against
Avina-Murillo’s counsel for intentionally misleading the court
as to events occurring during the trial. As a sanction, the court
filed a formal complaint with the Nebraska Supreme Court’s
Counsel for Discipline.
On December 14, 2017, Avina-Murillo, through new counsel,
filed an amended motion for new trial. She alleged an irregu-
larity in the proceedings, including the lunch incident and the
decision not to call J.P.’s parents as witnesses. Avina-Murillo
claimed that her right to due process was violated when she
was unable to present an adequate defense to the jury.
The court held a hearing on the motion and received sev-
eral affidavits. Avina-Murillo stated in an affidavit that after
her counsel had a meeting with the judge and the prosecutor,
her counsel told her that J.P.’s parents were “no longer able
to testify.” She stated that when, back in the courtroom, the
court asked her counsel about J.P.’s parents’ testifying, it was
her understanding J.P.’s parents were unable to testify and she
was unaware she had the choice to call them as witnesses. She
stated that she would have called the parents as witnesses if
she had known she had the option, because she believed their
testimonies would have helped her case.
The court also received affidavits from J.P.’s parents that
were nearly identical in substance. J.P.’s parents stated that
Avina-Murillo’s counsel told them that there would be “prob-
lems or a big scandal” if they took the witness stand and
that “the best thing to do would be to not take the witness
stand.” They stated that their testimonies would have been
consistent with prior statements to police and the prosecu-
tor. They would have testified that J.P. was vomiting and
very sleepy in the 7 days before April 2, 2015. They “would
have testified about the different statements from the doctors
regarding the cause of [J.P.’s] conditions and medical issues,
which includes the fact that two doctors had told [them]
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STATE v. AVINA-MURILLO
Cite as 301 Neb. 185
that [J.P.’s] issues were not caused by a shaking injury.”
They would have testified that due to J.P.’s blood condition,
any shaking of her would have caused bruising where the
shaker grabbed her. Further, J.P.’s parents would have testified
that they did not believe Avina-Murillo was responsible for
J.P.’s condition.
The court denied Avina-Murillo’s motion for new trial. The
court stated that it did not see any exculpatory evidence in the
affidavits and that information in the affidavits “appear[ed]
to be evidence that was presented . . . at the trial.” The
court then proceeded to sentencing and imposed a sentence
of probation.
Through the same counsel who filed the amended motion
for new trial, Avina-Murillo timely appealed. We granted her
petition to bypass review by the Nebraska Court of Appeals.
ASSIGNMENTS OF ERROR
Avina-Murillo assigns that for several reasons, the district
court erred in denying her motion for new trial. She also asserts
that her trial counsel was ineffective when he (1) decided not
to call J.P.’s parents as witnesses, (2) failed to move for a
mistrial, (3) failed to withdraw due to an ethical conflict of
interest, and (4) failed to consult with Avina-Murillo about
those decisions.
STANDARD OF REVIEW
[1] We have often said that in a criminal case, a motion for
new trial is addressed to the discretion of the trial court, and
that unless an abuse of discretion is shown, the trial court’s
determination will not be disturbed.2 But although we have
not said so before in so many words, where there is no factual
dispute, the timeliness of a motion for new trial presents a
question of law.3
2
See, e.g., State v. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017).
3
See, State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993); Parker v.
State, 164 Neb. 614, 83 N.W.2d 347 (1957).
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[2,3] Whether a claim of ineffective assistance of trial coun-
sel may be determined on direct appeal is a question of law.4 In
reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively
determine whether counsel did or did not provide effective
assistance and whether the defendant was or was not preju-
diced by counsel’s alleged deficient performance.5
ANALYSIS
Motion for New Trial
Twelve days after the jury returned its verdict, Avina-Murillo
filed a motion for new trial. Some 2 months after that, she filed
an amended motion. As the State correctly argues, neither
motion was timely.
[4] Statutes set forth the grounds and time limits for filing
a motion for new trial.6 Avina-Murillo’s original motion for
new trial alleged grounds under § 29-2101(1) and (4), and her
amended motion set forth grounds under § 29-2101(1) and (7).
According to § 29-2103(3), a motion for new trial based on
the grounds set forth in § 29-2101(1) through (4) or (7) “shall
be filed within ten days after the verdict was rendered unless
such filing is unavoidably prevented . . . .” This court has long
held that § 29-2103 by its terms is mandatory.7
[5] The time limitation for filing a motion for new trial runs
from rendition of the verdict. A statute provides that when
the jury has agreed upon its verdict, the jury must be “con-
ducted into court” and may be polled at the request of either
the prosecuting attorney or the defendant before the verdict is
accepted.8 A jury’s action cannot become a verdict until it is
4
State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
5
Id.
6
See Neb. Rev. Stat. §§ 29-2101 and 29-2103 (Reissue 2016).
7
State v. Thompson, supra note 3.
8
Neb. Rev. Stat. § 29-2024 (Reissue 2016).
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finally rendered in open court and received and accepted by
the trial judge.9
With that understanding, we summarize what happened. The
record shows that on September 29, 2017, the jury returned
to the courtroom and responded “[y]es” to the court’s ques-
tion whether it had reached a verdict. The court clerk read the
verdict in open court. After reading the verdict, the clerk asked
if it was the jury’s “unanimous, final verdict.” The foreper-
son responded, “Yes.” The court then asked if there was any
request to poll the jury. There was not. The court sent the jury
out and stated that it “will accept the verdict of the jury and
find and enter a judgment of guilty against [Avina-Murillo] in
this matter.” It added, “The Court will order [Avina-Murillo] to
appear for a sentencing” and specified the date and time. The
court announced the revocation of Avina-Murillo’s bond and
placed her in the sheriff’s custody.
As this summary demonstrates, the verdict was finally ren-
dered in open court and received and accepted by the trial
judge on September 29, 2017. On appeal, Avina-Murillo makes
two arguments to avoid this conclusion.
First, she argues that the verdict was not accepted until the
filing of the “Judgment on Conviction” on October 3, 2017.
But despite the court’s use of the word “will,” it is clear that
the jury rendered its verdict and the court accepted the verdict
in open court on September 29. On that date, the court also
completed and signed the “Judgment on Conviction.”
Avina-Murillo’s reliance on the filing date is misplaced.
Technically, the document was not a “judgment.” We have
held that the judgment in a criminal case is the sentence.10 The
document here did not impose a sentence. It merely memo­
rialized what had already transpired. The delay in filing of the
document did not affect the legal significance of the events
that already had occurred in open court.
9
State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017).
10
See id.
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[6] Consequently, Avina-Murillo did not file her initial
motion within 10 days after the verdict was rendered. Unless
one of the two statutory exceptions applies, a motion for new
trial filed more than 10 days after the verdict has no effect.11
Second, Avina-Murillo attempts to invoke one of the excep-
tions. She urges us to find that she was “unavoidably delayed
in her filing”12 under § 29-2103(3). It does not appear from
the record that the district court considered the timeliness of
her motion. We note that neither motion claimed that Avina-
Murillo was “unavoidably prevented” from filing it within 10
days after the verdict was rendered.13
[7] “[U]navoidably prevented” as used in § 29-2103 refers
to circumstances beyond the control of the party filing the
motion for new trial.14 The law requires diligence on the part
of clients and their attorneys, and the mere neglect of either
will not entitle a party to relief on that ground.15
Nothing in the record would allow us to find that Avina-
Murillo was unavoidably prevented from filing her motion on
time. Thus, her attempt to invoke the statutory exception fails.
[8] Because both of her arguments fail, we cannot address
the district court’s ruling on the motion. A motion for new
trial not filed in conformity with the statutory requirements
as to time may not be considered by an appellate court on
review.16 Even where a trial court has considered the merits
of an untimely motion for new trial, we have stated that such
a motion was not properly before us.17 Because Avina-Murillo
11
See State v. McCormick and Hall, 246 Neb. 271, 518 N.W.2d 133 (1994),
abrogated in part on other grounds, State v. Thomas, 262 Neb. 985, 637
N.W.2d 632 (2002).
12
Reply brief for appellant at 2.
13
See § 29-2103(3).
14
State v. Thompson, 246 Neb. 752, 523 N.W.2d 246 (1994).
15
State v. Hawkman, 198 Neb. 578, 254 N.W.2d 90 (1977).
16
State v. Thompson, supra note 3.
17
See id.
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did not file a timely motion for new trial, we do not con-
sider her assignments of error relating to the overruling of
the motion.
Ineffective Assistance of Counsel
Through different counsel, Avina-Murillo argues that in sev-
eral respects, her initial trial counsel was ineffective. Her argu-
ments all relate to the lunch incident and its aftermath.
[9,10] The law requires her to assert these issues now, but
we may not be able to decide them on direct appeal. When a
defendant’s trial counsel is different from his or her counsel
on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record. Otherwise, the
issue will be procedurally barred.18 The fact that an ineffec-
tive assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining
factor is whether the record is sufficient to adequately review
the question.19
[11] Avina-Murillo’s claims are premised on her trial
counsel’s having a conflict of interest. The right to effec-
tive assistance of counsel entitles the accused to his or her
counsel’s undivided loyalties, free from conflicting interests.20
Specifically, she claims that counsel performed deficiently
when he (1) decided not to call J.P.’s parents as witnesses after
informing the jury of those witnesses’ testimonies during open-
ing statements, (2) failed to move for a mistrial, (3) failed to
withdraw due to an ethical conflict of interest, and (4) failed
to consult with Avina-Murillo about those decisions. According
to Avina-Murillo, her counsel was placed in a situation in
which he had divided loyalties and had to choose between loy-
alty to himself and loyalty to his client.
18
State v. Vanness, supra note 4.
19
Id.
20
State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
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[12-14] Generally, to prevail on a claim of ineffective assist­
ance of counsel under Strickland,21 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense.22 To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law.23 To show prejudice, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient perform­
ance, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.24 The two prongs of this test may
be addressed in either order, and the entire ineffectiveness anal-
ysis should be viewed with a strong presumption that counsel’s
actions were reasonable.25
[15] But the Strickland Court recognized that prejudice is
presumed in some situations. “Actual or constructive denial
of the assistance of counsel altogether is legally presumed to
result in prejudice. So are various kinds of state interference
with counsel’s assistance.”26 In such situations, prejudice “is
so likely that case-by-case inquiry into prejudice is not worth
the cost” and the impairments to the right to counsel “are easy
to identify.”27 The Strickland Court then cited to Cuyler v.
Sullivan 28 and stated that “a similar, though more limited, pre-
sumption of prejudice” applies “when counsel is burdened by
21
Strickland v. Washington, supra note 1.
22
State v. Cotton, supra note 20.
23
Id.
24
Id.
25
Id.
26
Strickland v. Washington, supra note 1, 466 U.S. at 692.
27
Id.
28
Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333
(1980).
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an actual conflict of interest.”29 In that situation, “it is difficult
to measure the precise effect on the defense of representa-
tion corrupted by conflicting interests.”30 The Strickland Court
specified that “[p]rejudice is presumed only if the defend­
ant demonstrates that counsel ‘actively represented conflict-
ing interests’ and that ‘an actual conflict of interest adversely
affected his lawyer’s performance.’”31
At this juncture, it is necessary to recognize that there
are several types of conflicts of interest that could arise. An
attorney may concurrently represent clients with conflicting
interests (multiple representation). An attorney could succes-
sively represent clients with conflicting interests (successive
representation). Or the interests of the client may conflict with
the attorney’s personal interests (personal interest conflict).
“Not all conflicts of interest that affect the attorney’s ‘duty
of loyalty’ have the same consequences, and they are not all
suited to Cuyler’s stringent rule.”32 Multiple representation
conflicts tend to present the most problems, because whatever
path the attorney takes will likely harm the interests of at least
one client. On the other hand, when the attorney has a personal
conflict, the attorney can still fulfill his or her duty of loyalty
to the client, although doing so may be to the detriment of the
attorney’s personal interest.
Where a conflict of interest involves multiple representa-
tion, the U.S. Supreme Court has provided clear guidance.
Automatic reversal is appropriate where defense counsel is
improperly forced to represent codefendants over counsel’s
timely objection.33 The Court held in Cuyler that where there
is no timely objection, “a defendant who shows that a conflict
29
Strickland v. Washington, supra note 1, 466 U.S. at 692.
30
Id.
31
Id.
32
Beets v. Scott, 65 F.3d 1258, 1269 (5th Cir. 1995).
33
See Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426
(1978).
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of interest actually affected the adequacy of his representation
need not demonstrate prejudice in order to obtain relief.”34 The
Court later explained that the purpose of the Cuyler exception
is “to apply needed prophylaxis in situations where Strickland
itself is evidently inadequate to assure vindication of the
defend­ant’s Sixth Amendment right to counsel.”35
But the law has evolved regarding whether the presumed
prejudice standard should apply to other conflict of interest
situations. The Fifth Circuit concluded that the presumed preju-
dice standard applied only to multiple representation conflicts
and that a court should apply the Strickland standard when
the conflict involves counsel’s self-interest.36 Subsequently, in
dicta contained in Mickens v. Taylor,37 the U.S. Supreme Court
observed that federal courts of appeals had applied Cuyler
“‘unblinkingly’ to ‘all kinds of alleged attorney ethical con-
flicts.’” But the Mickens Court cautioned that “the language
of [Cuyler] itself does not clearly establish, or indeed even
support, such expansive application.”38 In Mickens, the Court
explicitly left open whether Cuyler should be extended to cases
of successive representation.
Our own case law post-Mickens does not reveal a clear
standard for ineffective assistance of counsel claims involv-
ing conflicts of interest. In 2006, we discussed Mickens and
stated that “prejudice will be presumed only if the conflict has
significantly affected counsel’s performance, thereby rendering
the verdict unreliable, even though Strickland prejudice cannot
be shown.”39 In the 2006 case, the alleged conflict involved
34
Cuyler v. Sullivan, supra note 28, 446 U.S. at 349-50.
35
Mickens v. Taylor, 535 U.S. 162, 176, 122 S. Ct. 1237, 152 L. Ed. 2d 291
(2002). See Strickland v. Washington, supra note 1.
36
See Beets v. Scott, supra note 32.
37
Mickens v. Taylor, supra note 35, 535 U.S. at 174, quoting Beets v. Scott,
supra note 32.
38
Mickens v. Taylor, supra note 35, 535 U.S. at 175.
39
State v. Aldaco, 271 Neb. 160, 167-68, 710 N.W.2d 101, 108 (2006).
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defense counsel’s prior representation of the victim’s brother
(a successive representation) and we determined on direct
appeal that there was no actual conflict nor any basis for a
presumption of prejudice. Two years later, in a postconviction
appeal, we were confronted with a claim that appellate counsel
had a conflict due to a close personal relationship with trial
counsel and consequently failed to argue that trial counsel
provided ineffective assistance.40 We stated: “Ordinarily, such
a conflict arises when an attorney is representing multiple
defendants. This court, however, has previously defined ‘actual
conflict’ broadly. The term therefore encompasses any situation
in which a defense attorney faces divided loyalties such that
regard for one duty tends to lead to disregard of another.” 41 We
resolved the issue by determining that the defendant failed to
show the trial court erred in concluding that the two attorneys
had no personal relationship.
Two of our decisions, both involving postconviction proceed-
ings, warrant more indepth discussion. In State v. Edwards,42
Christopher A. Edwards alleged, among other things, that his
counsel failed to provide a meaningful defense due to his
friendship with a material prosecution witness. After Edwards’
trial, his counsel represented this witness in a criminal prosecu-
tion. We stated the following with respect to Mickens:
[T]he U.S. Supreme Court stated that the “actual con-
flict” inquiry is not separate from a performance inquiry:
“An ‘actual conflict,’ for Sixth Amendment purposes,
is a conflict of interest that adversely affects counsel’s
per­formance.” Thus, we have stated that when an actual
conflict exists, there is no need to show that the conflict
resulted in actual prejudice to the defendant (meaning
no need to show the outcome of the proceeding was
affected). But the substantive analysis is the same. If the
40
See State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
41
Id. at 442, 747 N.W.2d at 429.
42
State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
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defendant shows that his or her defense counsel faced a
situation in which conflicting loyalties pointed in opposite
directions and that his or her counsel acted for the other
client’s interests and against the defendant’s interests,
prejudice is presumed.43
We proceeded to discuss conflicts of interest resulting from
successive representation. Ultimately, we reversed the decision
and remanded the cause for an evidentiary hearing on the issue.
Upon our remand in Edwards, the trial court held an eviden-
tiary hearing.44 During the hearing, counsel denied a friendship
with the witness. Counsel testified that before he agreed to
represent the witness, he researched whether the representation
would cause a conflict of interest. He was advised that such
representation would not affect Edwards’ case, even though
there were still briefs to be written for Edwards’ direct appeal.
The trial court determined that counsel did not have an actual
conflict of interest. Upon Edwards’ appeal, we stated that
“[t]he record simply does not support a finding that [counsel]
had such a loyalty to [the witness] that would have tempted
him at trial to act against Edwards’ interests.” 45 We agreed that
counsel did not have an actual conflict of interest at the time he
served as Edwards’ trial counsel.
We addressed a personal interest conflict in State v.
Armstrong.46 We began by stating that counsel performed defi-
ciently and that “[d]efense counsel’s interest in avoiding crimi-
nal or ethical sanctions was in conflict with [the defendant’s]
interest in presenting the strongest defense possible.” 47 With
regard to the prejudice component, we first set forth the
Strickland standard of “a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding
43
Id. at 406-07, 821 N.W.2d at 701.
44
See State v. Edwards, 294 Neb. 1, 880 N.W.2d 642 (2016).
45
Id. at 22, 880 N.W.2d at 655.
46
State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015).
47
Id. at 1015, 863 N.W.2d at 467.
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would have been different.” 48 Next, we stated that prejudice is
presumed if the defendant shows conflicting loyalties pointed
in opposite directions and counsel acted against the defend­
ant’s interests. We then stated, “[E]ven if we do not apply
such presumption, we easily conclude that actual prejudice
resulted from counsel’s deficient performance.” 49 Ultimately,
we applied Strickland to resolve the prejudice component,
stating: “Under the totality of the circumstances presented at
trial, the decision would reasonably likely have been different
but for counsel’s error leading to the absence of the testimony
of [the defendant’s] wife and son-in-law.”50 In the conclusion
portion of our opinion, we stated that the defendant “met both
prongs of his burden under Strickland.”51
Two of our recent cases presented alleged conflicts of inter-
est raised on direct appeal. In the context of a multiple rep-
resentation, we determined that the record was insufficient
to review the claim.52 In a case involving a personal interest
conflict, we stated that “[i]f the defendant shows that his or her
defense counsel faced a situation in which conflicting loyal-
ties pointed in opposite directions and that his or her counsel
acted for the other client’s interests or the counsel’s own per-
sonal interests and against the defendant’s interests, prejudice
is presumed.”53 But in that case, we found that the defendant
validly waived the conflict of interest.
[16] The State seeks guidance as to the applicable stan-
dard, but we decline to adopt a bright-line rule as to whether
Cuyler or Strickland applies to personal interest conflicts.54
48
Id. at 1016, 863 N.W.2d at 467.
49
Id. at 1016, 863 N.W.2d at 468.
50
Id. at 1020, 863 N.W.2d at 470.
51
Id.
52
See State v. Vanness, supra note 4.
53
State v. Cotton, supra note 20, 299 Neb. at 674-75, 910 N.W.2d at 128.
54
See, Strickland v. Washington, supra note 1; Cuyler v. Sullivan, supra
note 28.
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In most such cases, the more burdensome Strickland standard
should apply. The Fifth Circuit explained that “[b]ecause the
scope of the duty of loyalty with respect to attorney self-
interest is inherently vague and overlaps with professional
effectiveness, Strickland ought to set the constitutional norm
of adequate representation.”55 But we can envision a situation
in which the conflict is so serious that the defendant should
be relieved of the obligation to show a reasonable probability
that the outcome of the trial would have been different. Thus,
we think the better approach is to determine the appropriate
standard on a case-by-case basis. We disapprove of State v.
Cotton,56 State v. Armstrong,57 and State v. Edwards 58 to the
extent they can be read to always require a presumption of
prejudice where counsel’s conflict of interest does not involve
multiple representation.
Because the alleged personal interest conflict here does
not rise to the level of demanding a presumption of preju­
dice, we apply the Strickland standard. As we recited above,
in order to prevail under Strickland, Avina-Murillo must show
that her counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law and a
reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been
different.59
Both parties contend, for different reasons, that the record
on direct appeal is sufficient to resolve Avina-Murillo’s inef-
fective assistance of counsel claims. They direct us to affida-
vits received during the hearing on the motion for new trial.
During oral arguments, the State conceded that such evidence
can and should be considered for purposes of the ineffective
55
Beets v. Scott, supra note 32, 65 F.3d at 1271.
56
State v. Cotton, supra note 20.
57
State v. Armstrong, supra note 46.
58
State v. Edwards, supra note 42.
59
See State v. Cotton, supra note 20.
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assistance of counsel claims, regardless of the timeliness of the
motion for new trial.
But in considering this evidence, we are mindful that it
was not tested in an adversarial way. Although the court
received the affidavits, it did not conduct an evidentiary hear-
ing. Thus, the State did not have a chance to cross-examine
the affiants about their statements. And the affidavits merely
presented Avina-Murillo’s and the parents’ unchallenged ver-
sion of events. Conspicuously absent is counsel’s side of
the story. Thus, we cannot say that the undisputed facts are
sufficient to conclusively determine whether Avina-Murillo’s
initial trial counsel did or did not provide effective assistance.
Too much depends on speculation, assumptions, inferences, or
untested affidavits. We will not presume prejudice based on
mere speculation.60
[17] Rarely do we find on direct appeal that a defendant
established a claim of ineffective assistance of trial counsel. In
determining whether trial counsel’s performance was deficient,
there is a strong presumption that counsel acted reasonably.61
On only two occasions have we, on direct appeal, found that
trial counsel’s actions could not be justified as a part of any
plausible trial strategy.62 In State v. Rocha,63 where counsel
failed to move to sever a sexual assault charge from child
abuse charges, we stated that we could conceive of no stra-
tegic reason for counsel’s failure to act and that such failure
undermined our confidence in the outcome of the trial. In
State v. Faust,64 we concluded that counsel provided ineffec-
tive assistance “by failing to object to a significant amount
60
State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
61
State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).
62
See, State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013); State v. Faust,
265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on other grounds,
State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
63
State v. Rocha, supra note 62.
64
State v. Faust, supra note 62, 265 Neb. at 870, 660 N.W.2d at 868.
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of improper negative character evidence.” Because the jury
was presented with inadmissible evidence that was inflam-
matory and had an increased potential for jury confusion, we
could not ascertain “whether the defendant was convicted for
committing the elements of the crime charged or whether the
jury determined guilt because the defendant was a generally
aggressive or violent person and, thus, more likely to commit
the crime.”65 But finding ineffective assistance on direct appeal
is the exceptional case, and for good reason. Failing to call a
witness promised during opening statement simply does not
reach that level. There are many legitimate reasons why this
could occur. Although the record suggests that a personal inter-
est conflict may have been involved, it does not conclusively
establish cause and effect.
Based on the record before us, we cannot conclusively
determine as a matter of law that counsel’s alleged deficient
performance did or did not cause Avina-Murillo prejudice. As
noted, there is a strong presumption that counsel acted rea-
sonably, and we decline to speculate as to the trial strategy, if
any, behind counsel’s decisions.
Further, we disagree with the State that evidence of guilt was
overwhelming. We recognize that because this case involved a
negligent child abuse charge, the State needed to prove beyond
a reasonable doubt only that Avina-Murillo negligently caused
or permitted J.P. to be (1) placed in a situation that endangered
her life or physical or mental health, (2) cruelly punished, or
(3) deprived of necessary care.66 But we cannot say conclu-
sively that the outcome would have been the same had the
jury heard from J.P.’s parents, as it had been told it would.
Avina-Murillo’s other allegations of ineffectiveness—counsel’s
failure to move for a mistrial, move to withdraw, or consult
with Avina-Murillo regarding the actions about which she
complains—are all premised on the same alleged conflict as
65
Id. at 871, 660 N.W.2d at 868-69.
66
See Neb. Rev. Stat. § 28-707(1) (Cum. Supp. 2014).
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the decision not to call the parents as witnesses. The claims
rise or fall together.
Ultimately, we are missing necessary facts to conclusively
determine whether counsel performed deficiently and whether
there is a reasonable probability that absent such deficient
performance, the result of the proceeding would have been
different. We conclude that the record is insufficient on direct
appeal to resolve Avina-Murillo’s claims of ineffective assist­
ance of counsel.
­
CONCLUSION
We do not consider Avina-Murillo’s arguments regarding
the overruling of her motion for new trial, because the motion
was untimely. Applying the Strickland standard, we determine
that the record is insufficient to resolve Avina-Murillo’s claims
that she received ineffective assistance of counsel due to her
initial trial counsel’s personal interest conflict. We therefore
affirm Avina-Murillo’s conviction and sentence.
A ffirmed.
Papik, J., not participating.