State v. Cavitte
| Decision Date | 07 July 2020 |
| Docket Number | No. A-19-643.,A-19-643. |
| Citation | 945 N.W.2d 228,28 Neb.App. 601 |
| Parties | STATE of Nebraska, appellee, v. Augustine L. CAVITTE, appellant. |
| Court | Nebraska Court of Appeals |
Thomas C. Riley, Douglas County Public Defender, and Bethany R. Stensrud, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Augustine L. Cavitte appeals her conviction following a jury trial in the district court for Douglas County of one count of second degree domestic assault. On appeal, she argues the court erred in overruling her motions for a mistrial and a new trial, in admitting evidence of her prior bad acts, and in denying her pretrial motion to suppress. For the reasons set forth below, we affirm.
In May 2018, Cavitte was charged in the county court for Douglas County with one count of domestic assault in the second degree, in violation of Neb. Rev. Stat. § 28-323(2) and (6) (Reissue 2016), a Class IIIA felony, following an altercation with her husband. Cavitte was subsequently bound over to the district court for Douglas County, where she was charged by information with the same count. She filed a motion to suppress her statements made to law enforcement on the night of the incident, arguing that the statements were obtained in violation of her rights under the U.S. and Nebraska Constitutions.
At the hearing on Cavitte's motion to suppress, the State adduced testimony from Sgt. Cody Baines of the Omaha Police Department. Baines testified that on the evening of April 30, 2018, he responded to a call stating that a female had stabbed a male. When he arrived at the scene, Cavitte was handcuffed and placed in the back of a police cruiser, while the victim was transported for medical attention. Baines questioned Cavitte while she was in the police cruiser, inquiring as to her name, the victim's name, their relationship, and a brief description of what occurred. Her Miranda rights were then administered and questioning continued. Baines’ questioning of Cavitte is laid out in greater detail in the analysis section below. Baines informed the court that while he was questioning Cavitte, it appeared that she had been crying and there was a moderate odor of alcohol emanating from her.
The State also provided testimony from Det. Derrick Kreikemeier, who interviewed Cavitte at the police headquarters. Prior to interviewing her, Kreikemeier inquired of Cavitte whether she remembered her Miranda rights previously administered or whether she needed them read again. She indicated she remembered, and Kreikemeier proceeded to interview her without reading them to her again. After initially telling Kreikemeier a false story, Cavitte told him that she had been staying at her husband's apartment for 3 days to work on marital issues. She became angry with him when he told her that he had been having an affair, and she grabbed a small knife and "glazed" him on the head with it. After "glazing" him, the two wrestled until she realized he was bleeding. She then wrapped his head in an article of clothing. Kreikemeier testified that he noticed an odor of alcohol on Cavitte and she was emotional, but that she appeared to be appropriately answering his questions. Kreikemeier also admitted that he had to redirect Cavitte multiple times during the interview.
Additional details regarding Kreikemeier's interview with Cavitte are provided below.
Following the suppression hearing, the district court overruled Cavitte's motion to suppress. The court determined that Cavitte was properly arrested, she was advised of her Miranda rights, and she knowingly and voluntarily waived her Miranda rights. A jury trial was held in March 2019. Prior to the start of trial, a discussion was held among the State, defense counsel, and the court regarding a statement Cavitte made to Kreikemeier that the abuse between her and her husband was "50/50." Defense counsel argued that the statement was improper under Neb. Rev. Stat. § 27-404 (Reissue 2016). The court disagreed, stating that the issue was discussed in chambers, its ruling had not changed, and it did not find that the statement was barred by § 27-404.
At trial, Baines and Kreikemeier testified consistently with their testimony at the suppression hearing. The State also offered into evidence audio recordings of Cavitte's telephone calls from jail following the altercation, as well as testimony from her husband's treating physician, who testified that her husband had four lacerations on his head which were not deep. Cavitte's defense consisted of testimony from an expert witness on domestic violence and intimate partner abuse, who testified generally regarding the nature of a relationship involving domestic violence. Cavitte also testified in her own behalf, stating that she "glazed" her husband in self-defense, after he choked and punched her. Cavitte was found guilty of second degree domestic assault and was sentenced to 3 years’ probation. She timely appealed.
Cavitte assigns, restated, that the district court erred by (1) overruling her motion to suppress, (2) denying her motion for a mistrial and her motion for a new trial based on prosecutorial misconduct, and (3) admitting evidence of her prior bad acts under § 27-404.
In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we apply a two-part standard of review. State v. Rogers , 277 Neb. 37, 760 N.W.2d 35 (2009). With regard to historical facts, we review the trial court's findings for clear error. Id. Whether those facts suffice to meet the constitutional standards, however, is a question of law which we review independently of the trial court's determination. Id.
An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct for an abuse of discretion of the trial court. State v. McSwine , 292 Neb. 565, 873 N.W.2d 405 (2016). An appellate court will not disturb a trial court's decision whether to grant a motion for mistrial unless the court has abused its discretion. State v. Gonzales , 294 Neb. 627, 884 N.W.2d 102 (2016).
An appellate court reviews for abuse of discretion a trial court's evidentiary rulings on the admissibility of a defendant's other crimes or bad acts under § 27-404, or under the inextricably intertwined exception to the rule. State v. Burries , 297 Neb. 367, 900 N.W.2d 483 (2017).
Cavitte argues that the district court erred in overruling her motion to suppress statements made in violation of her rights under the Fifth Amendment to the U.S. Constitution and article I, section 7, of the Nebraska Constitution. Specifically, Cavitte alleges that the court erred in failing to suppress her statements made prior to receiving the Miranda warning, failing to suppress her statements made after receiving the Miranda warning, and in finding that her Miranda waiver was given knowingly, voluntarily, and intelligently. We disagree.
Cavitte argues that the district court erred in not suppressing statements she made while in custody in the police cruiser because she had not been advised of her rights pursuant to Miranda v. Arizona, supra . We disagree.
The Miranda Court adopted a set of safeguards to protect suspects during modern custodial interrogations, which have also been implemented through Nebraska courts. State v. Williams , 26 Neb. App. 459, 920 N.W.2d 868 (2018). These safeguards are implicated whenever a person is in custody and interrogated. Id. It is undisputed that a person who is handcuffed and placed in a police cruiser's back seat is in custody. State v. Bormann , 279 Neb. 320, 777 N.W.2d 829 (2010). When a custodial interrogation occurs in the absence of Miranda - style procedural safeguards, an arrestee's self-incriminating statements are inadmissible in court. See State v. Juranek , 287 Neb. 846, 844 N.W.2d 791 (2014).
Baines began questioning Cavitte at 12:10 a.m. while she was handcuffed in the back of his police cruiser, and he asked about her living arrangements, her relationship with her husband, and her injuries. After Cavitte informed him that she did not know she had any injuries, Baines asked, "If they happened, and they did happen, how do you think they happened?" Cavitte then responded that it was "a disagreement." Baines then questioned, Cavitte informed him that "we've been going through a lot in our marriage." Baines next stated, "You guys still love each other and it's tough, I understand," which prompted Cavitte to state that they had been married two times. Baines then requested another officer help him with the rights advisory and read Cavitte her Miranda rights at 12:12 a.m.
Cavitte asserts her statements that a "disagreement" occurred and that "we hurt each other" were incriminating statements. We disagree. First, although Cavitte asserts she stated that "we hurt each other" in response to Baines’ questioning, and Baines agreed with Cavitte's attorney's recitation of Cavitte's responses at the suppression hearing, our review of the audio recording of Baines’ questioning of Cavitte does not reveal she stated that "we hurt each other" prior to her Miranda rights being given.
Further, even if Cavitte did state that "we hurt each other" in response to Baines’ question about the nature of the disagreement between Cavitte and her husband, neither that statement nor Cavitte's assertion that a disagreement occurred is incriminating because Baines was questioning her about how she suffered her own injuries. The questions asked by Baines did not reference Cavitte's husband's injuries...
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State v. Prado
...the allegations, Farber read him his Miranda warning.We find Prado's response similar to that of the defendant in State v. Cavitte , 28 Neb. App. 601, 945 N.W.2d 228 (2020). In Cavitte , the defendant was handcuffed in the back seat of a police cruiser when law enforcement questioned her ab......