State v. Avina-Murillo

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/28/2018 08:13 AM CDT

- 185 -

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.

- 186 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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.

- 187 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

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).

- 188 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

[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

- 189 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

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

- 190 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

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

- 191 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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]

- 192 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

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).

- 193 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

[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).

- 194 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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.

- 195 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

[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.

- 196 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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).

- 197 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

[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).

- 198 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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).

- 199 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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).

- 200 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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).

- 201 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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.

- 202 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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.

- 203 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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.

- 204 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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.

- 205 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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).

- 206 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

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.