State v. Leon-Simaj
| Decision Date | 22 June 2018 |
| Docket Number | No. S-17-540.,S-17-540. |
| Citation | 913 N.W.2d 722,300 Neb. 317 |
| Parties | STATE of Nebraska, appellee, v. Antonio LEON-SIMAJ, also known as Antonio Leon-Batz, appellant. |
| Court | Nebraska Supreme Court |
Christopher J. Roth, of Forney Roth, L.L.C., Omaha, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.
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 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.
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.
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 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 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?"
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 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,
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.
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 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.
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."
Defense counsel explained that after the mistrial, he conducted more research and concluded that his line of questioning had been proper under § 27-608. Therefore, defense counsel believed there was no manifest necessity for the mistrial.
Defense counsel expressed to the court that the "test really is whether the defendant consents to the mistrial," and "we would submit that the cases we submitted, argument for the curative objection, were, in effect, our objection to the mistrial."
Defense counsel also asserted that E.Z.’s deposition testimony had supported the factual basis for his questioning.
The record does not contain any exhibits. And the record indicates that no exhibits were offered at trial, during the proceedings outside the presence of the jury, or at the hearing on the plea in bar.
The court denied Leon-Simaj’s plea in bar. The court did not address whether Leon-Simaj had consented to the mistrial. Rather, the court concluded that jeopardy was not terminated when improper questioning by defense counsel resulted in unfair prejudice to the State, which could not be cured by a limiting instruction.
The court elaborated that the proper procedure under § 27-609 would have been to simply ask E.Z. if she had been convicted of a felony or a crime of dishonesty. Instead, defense counsel asked questions about an " ‘arrest’ " and "spread details of the alleged crime before the jury."
Moreover, given the age of E.Z., the court stated that "[a]ny ‘arrest’ or conviction she might have is, in all likelihood, a juvenile adjudication," inadmissible...
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