S-22-0495 State of Nebraska (Appellee) v. Felipe N. Gonzalez Vazquez (Appellant)
Appeal from District Court for Lancaster County, Judge Andrew R. Jacobsen
Attorneys: Attorneys: Robert W. Kortus (Commission for Public Advocacy for Appellant) and Stacy M. Foust (Asst. Attorney General for Appellee).
Criminal: Life Imprisonment
Proceedings below: Appellant was found guilty of and was sentenced to consecutive prison terms as follows: First-Degree Murder (seventy (70) years to life), two (2) counts of Use of a Firearm to Commit a Felony (fifteen (15) to twenty (20) years for each conviction), Attempted First-Degree Assault on an Officer (twenty (20) to thirty (30) years), Possession of a Firearm by a Prohibited Person (five (5) to five (5) years), Possession of a Stolen Firearm (five (5) to ten (10) years), and Escape Using Force or Deadly Weapon (four (4) to six (6) years). Life imprisonment cases are direct appeals to the Supreme Court.
Issues: Appellant makes the following assignments of error: 1) The District Court clearly erred and abused its discretion in denying the Motion for Mistrial during Mayte Brown’s testimony, which denied Appellant a fair trial and violated due process; 2) The District Court clearly erred and abused its discretion in denying the Motion for Mistrial during Orion Ross’ testimony which denied Appellant a fair trial and violated due process; 3) The District Court clearly erred and abused its discretion in admitting examination of Epigmenio Vazquez regarding Appellant’s attitudes about the date of offense which denied Appellant a fair trial and violated due process; 4) The evidence in this record is insufficient to sustain convictions for Counts 3 and 4 of the Amended Information; 5) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to properly object at trial, move to strike, seek redaction, request a curative instruction or move for mistrial following improper admission of unduly emotional and inflammatory evidence and argument including evidence from witnesses Romshek, Carrie Herrera, Ross, Exhibits 25, 26, 27, 29, 30 and 44 and comments from the State’s opening statement; 6) Trial counsel was constitutionally ineffective in violation of the 5th , 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to move to suppress Appellant’s statement, properly object at trial, move to strike, seek redaction, request a curative instruction or move for mistrial following improper admission of evidence of the statement and during improper closing arguments by the State; 7) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution in respect to the State’s propensity evidence of Appellant’s character by failing to properly object at trial, move to strike, request a curative instruction or move for mistrial following improper admission of evidence, attempts to admit evidence and closing arguments by the State; 8) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution for asking Appellant improper questions on the veracity of other witnesses and failing to object to the State doing the same; 9) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution for failing to object to Exhibit 229 or move to redact or strike, or to seek a curative instruction because of a gang references; 10) Cumulative error deprived Appellant of Appellant’s right to a fair trial by an impartial jury in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution; 11) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to safeguard attorney work product jeopardizing Appellant’s right to a fair trial; 12) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to properly object during voir dire to the State previewing prospective jurors' opinions of the evidence that was to be presented; 13) Appellant failed to receive the benefit of constitutionally effective assistance of Counsel at the opening statement phase of the trial in violation of Appellant’s rights under the 6th and 14th Amendments of the United States Constitution and under Article I, §§ 3 and 11 to the Nebraska Constitution; 14) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution in respect to the State’s evidence of the amount of force utilized to locate and arrest Appellant by failing to properly object under Neb. Evid. Rules 401 and 403, move to strike, request a curative instruction or move for mistrial following improper admission of evidence and closing arguments by the State; 15) Appellant failed to receive the benefit of constitutionally effective assistance of counsel in violation of Appellant’s rights under the 6th and 14th Amendments of the United States Constitution and under Article I, §§ 3 and 11 to the Nebraska Constitution when trial counsel failed to impeach the credibility of Mayte Brown through evidence of impaired memory; 16) Appellant failed to receive the benefit of constitutionally effective assistance of counsel in violation of Appellant’s rights under the 6th and 14th Amendments of the United States Constitution and under Article I, §§ 3 and 11 to the Nebraska Constitution when trial counsel failed to impeach Mayte Brown for bias and credibility concerns arising from criminal charges faced by the witness; 17) Appellant failed to receive the benefit of constitutionally effective assistance of counsel in violation of Appellant’s rights under the 6th and 14th Amendments of the United States Constitution and under Article I, §§ 3 and 11 to the Nebraska Constitution when trial counsel failed to incorporate information supplied by Appellant which was necessary to effectively impeach Mayte Brown and thereby denying Appellant a fair trial; 18) Appellant failed to receive the benefit of constitutionally effective assistance of counsel in violation of Appellant’s rights under the 6th and 14th Amendments of the United States Constitution and under Article I, §§ 3 and 11 to the Nebraska Constitution when trial counsel adduced adverse evidence from Mayte Brown and denied Appellant a fair trial; 19) Appellant failed to receive the benefit of constitutionally effective assistance of counsel in violation of Appellant’s rights under the 6th and 14th Amendments of the United States Constitution and under Article I, §§ 3 and 11 to the Nebraska Constitution when trial counsel adduced evidence from a witness of a statement from Ross which was adverse to Appellant and denied Appellant a fair trial; 20) Trial counsel was constitutionally ineffective in violation of the 5th, 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution in respect to advice provided on the decision to exercise the right against self-incrimination by providing unreasonable advise necessary for a meaningful decision; 21) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution in respect to the State’s questioning Appellant about his employment status; 22) Trial counsel was constitutionally ineffective in violation of the 6th, 8th, and 14th Amendments of the United States Constitution and Article I, §§ 3, 9 and 11 of the Nebraska Constitution in respect to protecting Appellant’s against cruel and unusual punishment and an excessive sentence.