State v. Oliveira-Coutinho
| Decision Date | 10 July 2015 |
| Docket Number | No. S–13–798,S–13–798 |
| Citation | 865 N.W.2d 740 |
| Parties | State of Nebraska, appellee, v. Jose C. Oliveira–Coutinho, appellant. |
| Court | Nebraska Supreme Court |
Todd W. Lancaster, of Nebraska Commission on Public Advocacy, Lincoln, and Horacio J. Wheelock, of Horacio Wheelock Law Offices, P.C., L.L.O., Omaha, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
1. Juries: Discrimination: Appeal and Error.An appellate court reviews de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law.
2. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.An appellate court reviews for clear error a trial court's factual determination regarding whether a prosecutor's race-neutral explanation is persuasive and whether the prosecutor's use of a peremptory challenge was purposefully discriminatory.
3. Juries: Equal Protection: Prosecuting Attorneys.In Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the U.S. Supreme Court held that a prosecutor's privilege to strike individual jurors through peremptory challenges was subject to the commands of the Equal Protection Clause.
4. Juries: Prosecuting Attorneys.A prosecutor is ordinarily entitled to exercise permitted peremptory challenges for any reason at all, if that reason is related to his or her view concerning the outcome of the case.
5. Juries: Equal Protection: Discrimination.The Equal Protection Clause forbids the prosecutor to challenge potential jurors solely because of their race.
6. Juries: Discrimination: Prosecuting Attorneys: Proof.Determining whether a prosecutor impermissibly struck a prospective juror based on race is a three-step process. First, a defendant must make a prima facie showing that the prosecutor exercised a peremptory challenge because of race. Second, assuming the defendant made such a showing, the prosecutor must offer a race-neutral basis for striking the juror. And third, the trial court must then determine whether the defendant has carried his or her burden of proving purposeful discrimination. The third step requires the trial court to evaluate the persuasiveness of the
justification proffered by the prosecutor. But the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.
7. Juries: Discrimination: Prosecuting Attorneys: Moot Question.Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has decided the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing is moot.
8. Juries: Prosecuting Attorneys: Discrimination: Appeal and Error.The initial question whether a prosecutor's reasons for a peremptory challenge were race neutral is a question of law that an appellate court reviews de novo. The question is whether the stated reasons, on their face, were inherently discriminatory. In making that determination, an appellate court does not consider whether the prosecutor's reasons are persuasive.
9. Juries: Prosecuting Attorneys.The U.S. Supreme Court has explained that the third step of a Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), inquiry involves evaluating the prosecutor's credibility. Such credibility determinations lie within the peculiar province of the trial judge and require deference to the trial court.
10. Criminal Law: Trial: Juries: Appeal and Error.Whether a jury is to be kept together before submission of the cause in a criminal trial is left to the discretion of the trial court.
11. Criminal Law: Trial: Juries: Appeal and Error.To warrant reversal, denial of a motion to sequester the jury before submission of the cause must be shown to have prejudiced the defendant.
12. Jurors: Jury Instructions: Presumptions.Jurors are presumed to follow their instructions unless evidence to the contrary is shown.
13. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error.In reviewing a trial court's ruling on a motion to suppress evidence based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.
14. Search and Seizure: Evidence: Trial.Evidence obtained as the direct or indirect fruit of an illegal search or seizure, the poisonous tree, is inadmissible in a state prosecution and must be excluded.
15. Search and Seizure: Evidence.To determine whether the evidence is a fruit of the illegal search or seizure, a court asks whether the evidence has been come at by exploitation of the primary illegality or whether
it has instead been come at by means sufficiently distinguishable to be purged of the primary taint.
16. Evidence.Under the independent source doctrine, the challenged evidence is admissible if it came from a lawful source independent of the illegal conduct.
17. Evidence: Constitutional Law.Under the attenuated connection doctrine, the challenged evidence is admissible if the causal connection between the constitutional violation and the discovery of the evidence is so attenuated as to rid the taint.
18. Evidence: Police Officers and Sheriffs.Under the inevitable discovery doctrine, the challenged evidence is admissible if it inevitably would have been discovered by lawful means without reference to the police misconduct.
19. Constitutional Law: Due Process.The determination of whether the procedures afforded an individual comport with the constitutional requirements for procedural due process presents a question of law.
20. Constitutional Law: Appeal and Error.Claimed violations of the compulsory process right are reviewed de novo.
21. Constitutional Law: Witnesses: Due Process: Proof.In order to show that his or her compulsory process or due process rights have been violated as a result of the deportation of a potential witness, a defendant must (1) make an initial showing that the government has acted in bad faith and (2) make a plausible showing that the testimony of the deported witness would have been both material and favorable to his or her defense.
22. Trial: Evidence: Appeal and Error.A trial court's determination of the relevancy and admissibility of evidence must be upheld in the absence of abuse of discretion.
23. Trial: Witnesses.Competency of a witness is an issue to be determined by the trial court and not by the jury.
24. Trial: Witnesses.The credibility and weight of a witness' testimony are for the jury to determine.
25. Expert Witnesses: Appeal and Error.The standard for reviewing the admissibility of expert testimony is abuse of discretion.
26. Criminal Law: Constitutional Law: Due Process.Under the Due Process Clause of the 14th Amendment and the Compulsory Process and Confrontation Clauses of the 6th Amendment, a criminal defendant is guaranteed a meaningful opportunity to present a complete defense.
27. Trial: Evidence.Evidence relating to an illustrative experiment is admissible if a competent person conducted the experiment, an apparatus of suitable kind and condition was utilized, and the experiment was conducted fairly and honestly. It is not essential that conditions existing at the time of the experiment be identical with those existing
at the time of the occurrence, but the conditions should be essentially similar, that is, similar in all those factors necessary to make the comparison a fair and accurate one. The lack of similarity regarding the non essential factors then goes to the weight of the evidence rather than to its admissibility.
28. Trial: Photographs.The admission of photographs into evidence rests largely within the discretion of the trial court, which must determine their relevancy and weigh their probative value against their possible prejudicial effect.
29. Homicide: Photographs.In a homicide prosecution, photographs of a victim may be received into evidence for purposes of identification, to show the condition of the body or the nature and extent of wounds and injuries to it, and to establish malice or intent.
30. Criminal Law: Motions for New Trial: Appeal and Error.In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.
31. Judgments: Words and Phrases.An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
32. Motions for New Trial: Evidence: Witnesses.A new trial will not ordinarily be granted for newly discovered evidence which, when produced, will merely impeach or discredit a witness who testified at trial.
33. Trial: Prosecuting Attorneys: Appeal and Error.When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor's acts constitute misconduct.
34. Trial: Prosecuting Attorneys: Juries.A prosecutor's conduct that does not mislead and unduly influence the jury is not misconduct.
35. Trial: Prosecuting Attorneys: Appeal and Error.If an appellate court concludes that a prosecutor's acts were misconduct, the court must next consider whether the misconduct prejudiced the defendant's right to a fair trial.
36. Trial: Prosecuting Attorneys: Due Process.Prosecutorial misconduct prejudices a defendant's right to a fair trial when the misconduct so infected the trial that the resulting conviction violates due process.
37. Trial: Prosecuting Attorneys.Whether prosecutorial misconduct is prejudicial depends largely on...
To continue reading
Request your trial
-
State v. Jenkins
...v. Sprunger , 283 Neb. 531, 811 N.W.2d 235 (2012) ; State v. Nuss , 279 Neb. 648, 781 N.W.2d 60 (2010).8 See State v. Oliveira – Coutinho , 291 Neb. 294, 865 N.W.2d 740 (2015).9 See State v. Ball , 271 Neb. 140, 710 N.W.2d 592 (2006).10 State v. Tyler , 291 Neb. 920, 870 N.W.2d 119 (2015) ;......
-
State v. Clifton
...215 (1963).4 Brady v. Maryland , supra note 3.5 State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014).6 Id.7 State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).8 State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016).9 Batson v. Kentucky , supra note 1.10 Id.11 State v. Nave, 28......
-
State v. Braesch
...Neb. 393, 418, 754 N.W.2d 742, 762 (2008).15 See Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).16 See, State v. Oliveira–Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015) ; State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).17 See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.......
-
State v. McGovern
...See Riley v. California, supra note 5.63 See Neb. Rev. Stat. § 28-311.08 (Reissue 2016 & Cum. Supp. 2020).64 State v. Oliveira-Coutinho , 291 Neb. 294, 865 N.W.2d 740 (2015).65 Murray v. United States , 487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988), quoting Nix v. Williams , ......