State v. Hernandez
| Decision Date | 11 May 2018 |
| Docket Number | No. S-17-235.,S-17-235. |
| Citation | 911 N.W.2d 524,299 Neb. 896 |
| Parties | STATE of Nebraska, appellee, v. Desiderio C. HERNANDEZ, appellant. |
| Court | Nebraska Supreme Court |
Robert W. Kortus, Lincoln, of Nebraska Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman, Lincoln, for appellee.
A confession may not be used in a criminal prosecution if it was obtained through police coercion rather than voluntarily made. The appellant, who was convicted of first degree murder, argues that his confession was not voluntary, because he was still under the influence of the methamphetamine he smoked the day before. Because we find no police coercion, we conclude it was voluntary.
The appellant also claims that prior to his confession, he did not voluntarily waive his right to remain silent, but instead invoked that right during his interview with law enforcement. After a review of the evidence, we conclude that the appellant understood his rights, yet still agreed to speak with law enforcement. We also find that the appellant's statement that he would "probably stop talking" was not an unequivocal invocation of the right to remain silent. We also conclude that the district court did not abuse its discretion by not redacting some of the statements in the interview.
Finally, we conclude that the prosecuting attorney made several inappropriate comments during his closing arguments. However, the district court did not abuse its discretion by not declaring a mistrial, in part because of the strength of the evidence supporting the convictions.
Desiderio "Desi" C. Hernandez was charged with first degree murder (a Class I or IA felony),1 use of a firearm to commit a felony (a Class IC felony),2 and possession of a firearm by a prohibited person (a Class ID felony).3 All of these charges were made in connection with the death of his cousin, Joseph "Joey" A. Debella, Jr. A 5-day jury trial was held. The following evidence was adduced.
Debella moved to Falls City, Nebraska, in the summer of 2015. Shortly thereafter, Debella began staying at Jason Brownell's house (the Brownell house). Several other individuals also stayed there or visited frequently, including John Hall, Brett Winters, David McPherson, Jeff Morley, and Hernandez. Debella lived in the basement. All other residents, including Hernandez, slept upstairs.
Evidence suggested that methamphetamine was sold in the house on a daily basis and that everyone in the house was involved in drug sales, including Hernandez and Debella. One house resident testified that Debella was the primary dealer of methamphetamine.
Hall and McPherson testified to the events leading up to the discovery that Debella had been shot. On the evening of August 4, 2015, Hall and McPherson were smoking methamphetamine in Hall's bedroom in the Brownell house when they heard what sounded like a gunshot. According to McPherson, he said to Hall, " 'was that a gunshot I just heard?' " to which Hall replied, " "
A few minutes later, Hernandez opened the door to Hall's bedroom and asked if they wanted to go to the basement to smoke. Hall accepted the invitation, but shortly afterward, Hernandez left out the front door.
After Hernandez left, Hall yelled downstairs to Debella. Debella did not answer. Hall then heard "fast" breathing and went downstairs to discover Debella lying on the floor and shaking, with blood coming out of his head and blood on the floor. Hall yelled to McPherson that Debella had been shot and told McPherson to call the 911 emergency dispatch service. McPherson testified that he did not call 911, because it was not his house and he did not want to get involved. Instead, McPherson went to Brownell's workplace to tell Brownell about Debella.
McPherson and Hall testified that they did not hear anyone entering or leaving the house from the time they arrived to the time Hernandez left. Winters arrived at the house around the time that McPherson was leaving.
Hernandez' sister, Esperanza Ogden, also testified as to her recollections of that night. She testified that Hernandez came to her house at approximately 11:40 p.m. Hernandez gave Ogden a cigarette and said, " 'That will probably be the last cigarette I ever give you.' " Hernandez then told Ogden he had shot Debella and indicated he had shot him in the forehead. Hernandez then walked away.
Ogden then called her and Hernandez' brother and sister-in-law, who also lived in Falls City, to tell them what Hernandez had said. Minutes later, Hernandez arrived at their house. When he arrived, the brother and sister-in-law were on the front porch. From the sidewalk, Hernandez said, " 'I shot that motherfucker.' " The brother asked why, and Hernandez replied, " 'His bitch shouldn't have been late.' " Hernandez also said, " 'I told you guys I wasn't fucking around.' " According to the sister-in-law, as Hernandez was walking away, he sarcastically said, " " The sister-in-law testified that during the time Hernandez was at their house (about a minute), Hernandez was "hopping around" and could not keep still from adrenaline.
After Hernandez left, the sister-in-law called Ogden back and said she was coming to get her so they could go to the Brownell house together.
When Ogden and the sister-in law arrived at the Brownell house, the front door was locked. As they were knocking, McPherson arrived and yelled to Hall to open the door. Soon after, Hall and Winters opened the door, and McPherson left.
Ogden and the sister-in-law entered the house, and they could hear Debella's labored breathing and moaning. Ogden described Debella's breathing as a "death hurl" or "death gurgle." Ogden then went into the basement and found Debella lying face down, with blood around his head. She told the sister-in-law to call 911.
Police responded shortly after the call. At approximately 12:15 a.m. on August 5, 2015, a Falls City Police Department officer, Jonathan Kirkendall, and another officer arrived at the scene. Hall told the officers that Debella was downstairs. When Kirkendall arrived at Debella's side, Debella was still breathing laboriously, but when Kirkendall attempted to communicate with him, Debella did not respond.
Kirkendall testified that he did not see any signs of struggle in the basement. The officers found some .22-caliber ammunition in the basement and a revolver handgun under some blankets on a futon bed.
Debella was taken by ambulance to a local hospital and then transported by helicopter to a hospital in Lincoln, Nebraska, where he was stabilized and placed in an intensive care unit. He was kept alive with a life support system. About a week later, Debella's mother decided to remove him from life support, after which he died.
At around 10 a.m. on August 5, 2015, Hernandez went to Michael Seager's house in Falls City. Seager was an acquaintance of Hernandez, whom Hernandez had gotten into an altercation with and had not been in contact with for 6 to 8 months.
Hernandez told Seager he had nowhere to go and asked if Seager wanted to "hang out" and smoke methamphetamine. Seager agreed, and the two spent the day together smoking multiple times. At some time during the day, Hernandez asked Seager if he could stay in his house and pay rent. Seager turned him down.
Hernandez then called his cousin, Tiffany Gates, who lived in Horton, Kansas, which is approximately 35 minutes outside of Falls City. Hernandez told Gates that he needed a place to stay. At the time Hernandez called, Gates already knew Hernandez was wanted in connection with the shooting of Debella and told Hernandez that he could come stay with her. Gates then got her children out of the house and arranged for someone to call the police when she sent a text message indicating that Hernandez had arrived.
Seager drove Hernandez to Gates' house. When they arrived, Gates sent the text message. Gates testified that she asked Hernandez what happened and that he chuckled and said, " 'I got that motherfucker right there.' " Seager testified that he overheard Hernandez say to Gates, " " and he saw Hernandez make a gesture like a gun pointed at his forehead. However, Gates testified that Hernandez told her Debella was still breathing when he left.
At about 7 p.m. on August 5, 2015, Horton police approached the Gates' residence. Hernandez immediately said to Gates, " 'I'm not here' " and ran into the house. Gates told one of the officers that Hernandez was inside.
Hernandez was ordered to come out of the house, but he stayed inside. The officers did not enter the house.
After an 8-hour standoff, which included a "SWAT team," Hernandez was taken into custody at approximately 3 a.m. on August 6, 2015. A Taser was deployed on Hernandez during his arrest.
After being briefly treated at a local hospital for a small laceration on his head and for a Taser prong stuck in his chest, Hernandez was medically cleared, turned over to the police, and transported to jail at around 3:30 a.m. on August 6, 2015.
At around 2:30 p.m. on August 6, 2015, Hernandez was interviewed by two Nebraska State Patrol investigators, Cory Townsend and Nicholas Frederick, in an interview room at the Brown County sheriff's office in Hiawatha, Kansas.
At the beginning of the video-recorded interview, Townsend introduced himself and Frederick and told Hernandez that they were from the Nebraska State Patrol. Hernandez asked Townsend, "Why am I in Kansas, and you guys are questioning me in another state?" Townsend explained that they can question people in other states, but do not have authority to make arrests...
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...v. Denno, supra note 2.53 Garner, supra note 8.54 State v. Goodwin , 278 Neb. 945, 774 N.W.2d 733 (2009).55 See, State v. Hernandez , 299 Neb. 896, 911 N.W.2d 524 (2018) ; Grant, supra note 52 ; State v. Dubray , 289 Neb. 208, 854 N.W.2d 584 (2014) ; State v. McClain , 285 Neb. 537, 827 N.W......
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... ... Neb. 576, 779 N.W.2d 362 (2010) ... [ 52 ] State v. Grant, 293 Neb ... 163, 876 N.W.2d 639 (2016). See Jackson v. Denno, ... supra note 2 ... [ 53 ] Garner, supra note ... [ 54 ] State v. Goodwin, 278 Neb ... 945, 774 N.W.2d 733 (2009) ... [ 55 ] See, State v. Hernandez, ... 299 Neb. 896, 911 N.W.2d 524 (2018); Grant, supra ... note 52; State v. Dubray, 289 Neb. 208, 854 N.W.2d ... 584 (2014); State v. McClain, 285 Neb. 537, 827 ... N.W.2d 814 (2013); State v. Landis. 281 Neb. 139, ... 794 N.W.2d 151 (2011); Goodwin, supra note 54 ... Accord ... ...
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...claims the evidence was both irrelevant and unfairly prejudicial. Evidence which is not relevant is inadmissible. State v. Hernandez , 299 Neb. 896, 911 N.W.2d 524 (2018). To be relevant, evidence must be probative and material. Id. Evidence is probative if it has any tendency to make the e......
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The Common Law as a Guide to State Constitutional Interpretation.
...v. Fitzpatrick, 986 N.E.2d 1163, 1166-67 (111. 2013) (describing "limited lockstep" approach utilized in Illinois); State v. Hernandez, 911 N.W.2d 524, 539 (Neb. 2018) (confirming lockstep with Supreme Court's interpretation of provisions parallel to article I of Nebraska Constitution); Sta......
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The Common Law as a Guide to State Constitutional Interpretation.
...v. Fitzpatrick, 986 N.E.2d 1163, 1166-67 (111. 2013) (describing "limited lockstep" approach utilized in Illinois); State v. Hernandez, 911 N.W.2d 524, 539 (Neb. 2018) (confirming lockstep with Supreme Court's interpretation of provisions parallel to article I of Nebraska Constitution); Sta......