State v. Avina-Murillo

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State v. Avina-Murillo

Case Number
Call Date
August 29, 2018
Case Time
9:00 AM
Court Number
Case Location
Case Summary

S-17-1302 State v. Veronica P. Avina-Murillo (Appellant)

Douglas County District Court, Judge Duane C. Dougherty

Attorneys: Austin N. Relph (Attorney General’s Office) --- Christopher J. Roth (Forney Roth, LLC)(Appellant)

Criminal: Negligent Child Abuse Resulting in Serious Bodily Injury

Proceedings below: Following a jury trial, Appellant was convicted.  The district court denied Appellant’s motion for new trial.  Appellant was sentenced to 2 years of probation.  Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: 1) The District Court erred in denying the Appellant’s Motion for New Trial: a) when there existed an irregularity in the proceedings that necessitated a new trial in the case, namely that Appellant was unable to present two necessary and important witnesses, b) after Appellant’s Trial Counsel was ethically compromised, failing to inquire of Appellant whether she had been consulted with or agreed with trial counsel’s decision not to call the child’s parents or trial counsel’s move for a mistrial or to withdraw, and c) failing to instruct the jury on why Ruben and Virgina were not testifying; and 2) Appellant’s trial counsel was ineffective: a) when trial counsel unreasonably made the decision not to call the two necessary and important witnesses after repeatedly discussing with the jury those witnesses’ testimony during opening statements;  b) when trial counsel failed to move for a mistrial after he, trial counsel, had been compromised ethically; c) when trial counsel failed to withdraw after he, trial counsel, had an ethical conflict of interest; and d) when trial counsel failed to consult with Appellant as to his decision not to call

the child’s parents to testify, not to move for a mistrial after being ethically compromised or not to withdraw.

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