State v. Leon-Simaj, No. S-17-540.

CourtSupreme Court of Nebraska
Writing for the CourtMartinez, District Judge.
Citation913 N.W.2d 722,300 Neb. 317
Decision Date22 June 2018
Docket NumberNo. S-17-540.
Parties STATE of Nebraska, appellee, v. Antonio LEON-SIMAJ, also known as Antonio Leon-Batz, appellant.

300 Neb. 317
913 N.W.2d 722

STATE of Nebraska, appellee,
v.
Antonio LEON-SIMAJ, also known as Antonio Leon-Batz, appellant.

No. S-17-540.

Supreme Court of Nebraska.

Filed June 22, 2018.


Christopher J. Roth, of Forney Roth, L.L.C., Omaha, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Riedmann, Judge, and Martinez, District Judge.

Martinez, District Judge.

913 N.W.2d 725

NATURE OF CASE

The defendant appeals from the denial of his plea in bar, alleging that retrial following a mistrial would violate prohibitions against double jeopardy.1 The mistrial was declared by the trial court following the court’s determination that

300 Neb. 319

defense counsel’s questioning of the witness, a minor child and hereinafter referred to as "E.Z.," was improper and that the prejudice could not be remedied by a curative jury instruction. Defense counsel did not explicitly object to a mistrial when given the opportunity to do so, but apologized for the improper questioning and, at the court’s request, presented case law wherein curative instructions were held to be sufficient to remedy improper references at trial to inadmissible evidence. At issue is whether the defendant implicitly consented to the mistrial and, if not, whether there was a manifest necessity for a mistrial.

BACKGROUND

Antonio Leon-Simaj, also known as Antonio Leon-Batz, was charged with one count of first degree sexual assault and two counts of possession of child pornography stemming from his relationship with E.Z. E.Z. was 14 years old at the time of trial and 13 years old at the time of the events in question.

E.Z.’s TESTIMONY

There are no pretrial motions in the record. Trial began with the testimony of E.Z., who testified that she and Leon-Simaj engaged in sexual intercourse on approximately 10 different occasions.

E.Z. was questioned about exhibits containing text messages between Leon-Simaj and E.Z. She confirmed that several text messages sent to Leon-Simaj contained pictures of her breasts and vagina.

E.Z. testified that at one point, she thought she might be pregnant. She read out loud text messages in which she asked Leon-Simaj to buy her a pregnancy test and in which Leon-Simaj said he would do so if she sent him a picture of herself without her underwear on. She did, and Leon-Simaj purchased a pregnancy test for her. E.Z. was not pregnant.

After E.Z.’s father discovered the relationship between E.Z. and Leon-Simaj, the matter was reported to law enforcement and E.Z. was taken to a hospital, where she was

300 Neb. 320

interviewed. During cross-examination, E.Z. admitted that she deleted all social media messages from Leon-Simaj the day before being interviewed. She also admitted that she had lied at the hospital by telling the interviewer that she had not called Leon-Simaj. E.Z. admitted, further, that she had falsely told the interviewer that she did not have Leon-Simaj’s telephone number.

E.Z. initially denied that she lied to the interviewer when she had said she was no longer texting Leon-Simaj. But when confronted with text messages, E.Z. admitted she had lied to the interviewer and had, in effect, just lied to the jury.

Defense counsel elicited testimony from E.Z. in which she described how she had told Leon-Simaj she was pregnant, even

913 N.W.2d 726

though she knew at that point that she was not. E.Z. read for the jury text messages in which she told Leon-Simaj that her pregnancy "hurt" and that she no longer wished to see Leon-Simaj or for him to have a relationship with the baby. In other text messages, E.Z. made reference to Leon-Simaj’s having a wife and told Leon-Simaj it was his fault "[m]y baby will not be with his daddy...."

Defense counsel pointed out that a total of 10 text messages referred to a baby that E.Z. knew did not exist. E.Z. admitted that, thus, she had lied 10 times.

At that point, defense counsel moved on to E.Z.’s possible past criminal behavior. Defense counsel asked E.Z., "Now ... you’ve been arrested before; correct?" E.Z. answered, "Yes." Defense counsel immediately asked, "For breaking into people’s yards and stealing bicycles?"

OBJECTION AND DECLARATION OF MISTRIAL

The prosecution objected to this line of questioning as involving improper character evidence.

Defense counsel initially responded that he wished to make an offer of proof. Outside the presence of the jury, the court expressed its opinion that the line of questioning was improper and asked defense counsel for further explanation as to what

300 Neb. 321

defense counsel’s offer of proof was and why it should come in. Defense counsel withdrew the request.

After a short recess to confer with the guardian ad litem, the prosecutor asked for a curative instruction. But when further pressed by the district court whether the prosecutor thought a curative instruction was "enough," it was at that point she responded, "No."

The court thereafter asked the prosecutor what the other option would be. The prosecutor responded that the other option would be to call for a mistrial.

The court asked defense counsel for his argument. Defense counsel conceded that it was improper to ask E.Z. if she had been arrested. Defense counsel apologized and explained that he had thought it was proper under Neb. Rev. Stat. § 27-608 (Reissue 2016) to elicit testimony as to specific instances of conduct.

The prosecutor pointed out that she had prosecuted E.Z. in the case that defense counsel was referencing and stated, "I can personally tell you no one was robbed, no one was stolen from, with regard to that. That is an absolute fabrication, the facts of that case, and I know it personally."

The court directed the parties to research whether an instruction could cure the error, granting them a short recess to do so.

After the recess, the prosecutor presented case law and argued that it would be appropriate for the court to call for a mistrial. The prosecutor also stated, "There is a mechanism if the defense wishes to object to a mistrial."

Defense counsel did not respond with an objection to the court’s declaring a mistrial. Instead, defense counsel apologized, explaining that he had believed he was "within 608," but that he "was wrong," at least inasmuch as he failed to understand the applicability of Neb. Rev. Stat. § 27-404 (Reissue 2016). Defense counsel presented for the court’s consideration three cases where curative instructions were held to be sufficient to remedy improper references at trial to inadmissible evidence.

300 Neb. 322

The court announced that it would be declaring a mistrial. The court reasoned that the proverbial "bell ... cannot be unrung." The court explained that in the middle of impeachment, defense counsel elicited improper testimony that E.Z. had been arrested, as well as details of an offense that "had nothing to do with truthfulness

913 N.W.2d 727

and was not, obviously, a felony." Defense counsel was silent and at no point objected to the court’s expressed intention to declare a mistrial.

The court brought the jurors back into the courtroom and discharged them.

PLEA IN BAR

Approximately 1 month later, defense counsel filed a plea in bar. Defense counsel alleged that the court’s evidentiary ruling was erroneous; therefore, there was no manifest necessity to declare a mistrial.

The State responded that despite having the opportunity, defense counsel did not object to a mistrial. The State also pointed out that defense counsel never offered into evidence E.Z.’s deposition or evidence of E.Z.’s alleged conviction. Further, any "crime" would be an inadmissible juvenile adjudication, as well as "petit larceny," which would not qualify as a crime of dishonesty under Neb. Rev. Stat. § 27-609 (Reissue 2016). Finally, the State asserted the testimony was excludable under Neb. Rev. Stat. § 27-403 (Reissue 2016) and § 27-404.

At the hearing on the plea in bar, defense counsel stated he realized that "the defense never did specifically say we objected to a mistrial at the hearing." Defense counsel explained he still agreed with the prosecutor that the line of questioning was not permitted by § 27-609. But he did not research "the 608 issue" during the time they were given "to research the issues" before the court decided whether to declare a mistrial.

Defense counsel said, "So that’s why we didn’t specifically object, but we did submit three cases to the case [sic] saying a curative instruction was more proper."

300 Neb. 323

Defense counsel explained that after the mistrial, he conducted more research and concluded that his line of questioning had been proper under § 27-608....

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6 practice notes
  • State v. Paul, A-1-CA-36748
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 28, 2020
    ...of homicide by vehicle. Implicit consent to a mistrial also removes any double jeopardy bar to retrial. See, e.g. , State v. Leon-Simaj , 300 Neb. 317, 913 N.W.2d 722, 730 (2018) ("While the U.S. Supreme Court has yet to squarely address the issue, courts generally agree that implied consen......
  • State v. Space, S-21-837
    • United States
    • Supreme Court of Nebraska
    • September 16, 2022
    ...upon and cured, if need be, by a properly timed objection.'" State v. Howard, 182 Neb. at 418, 155 N.W.2d at 344. In State v. Leon-Simaj, 300 Neb. 317, 329, 913 N.W.2d 722, 731 (2018), we condemned the use of silence as a constitutional sword of gamesmanship: [W]e have rejected defendants' ......
  • State v. Paul, No. A-1-CA-36748
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 28, 2020
    ...of homicide by vehicle. Implicit consent to a mistrial also removes any double jeopardy bar to retrial. See, e.g., State v. Leon-Simaj, 913 N.W.2d 722, 730 (Neb. 2018) ("While the U.S. Supreme Court has yet to squarely address the issue, courts generally agree that implied consent, just lik......
  • State v. Moody, No. A-17-969.
    • United States
    • Court of Appeals of Nebraska
    • September 11, 2018
    ...not applicable.IV. STANDARD OF REVIEW Issues regarding the grant or denial of a plea in bar are questions of law. State v. Leon-Simaj , 300 Neb. 317, 913 N.W.2d 722 (2018). On a question of law, an appellate court reaches a conclusion independent of the court below. Id.26 Neb.App. 331V. ANA......
  • Request a trial to view additional results
6 cases
  • State v. Paul, A-1-CA-36748
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 28, 2020
    ...of homicide by vehicle. Implicit consent to a mistrial also removes any double jeopardy bar to retrial. See, e.g. , State v. Leon-Simaj , 300 Neb. 317, 913 N.W.2d 722, 730 (2018) ("While the U.S. Supreme Court has yet to squarely address the issue, courts generally agree that implied consen......
  • State v. Space, S-21-837
    • United States
    • Supreme Court of Nebraska
    • September 16, 2022
    ...upon and cured, if need be, by a properly timed objection.'" State v. Howard, 182 Neb. at 418, 155 N.W.2d at 344. In State v. Leon-Simaj, 300 Neb. 317, 329, 913 N.W.2d 722, 731 (2018), we condemned the use of silence as a constitutional sword of gamesmanship: [W]e have rejected defendants' ......
  • State v. Paul, No. A-1-CA-36748
    • United States
    • New Mexico Court of Appeals of New Mexico
    • May 28, 2020
    ...of homicide by vehicle. Implicit consent to a mistrial also removes any double jeopardy bar to retrial. See, e.g., State v. Leon-Simaj, 913 N.W.2d 722, 730 (Neb. 2018) ("While the U.S. Supreme Court has yet to squarely address the issue, courts generally agree that implied consent, just lik......
  • State v. Moody, No. A-17-969.
    • United States
    • Court of Appeals of Nebraska
    • September 11, 2018
    ...not applicable.IV. STANDARD OF REVIEW Issues regarding the grant or denial of a plea in bar are questions of law. State v. Leon-Simaj , 300 Neb. 317, 913 N.W.2d 722 (2018). On a question of law, an appellate court reaches a conclusion independent of the court below. Id.26 Neb.App. 331V. ANA......
  • Request a trial to view additional results

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