State v. Mabior

• Citation: 314 Neb. 932
• Docket Number: S-22-574
• Decision Date: 25 August 2023
• Parties: State of Nebraska, appellee, v. Mabior M. Mabior, appellant.
• Court: Supreme Court of Nebraska

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314 Neb. 932

State of Nebraska, appellee,
v.
Mabior M. Mabior, appellant.

No. S-22-574

Supreme Court of Nebraska

August 25, 2023

1. Appeal and Error. Consideration of plain error occurs at the discretion of an appellate court.

2.__. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. Generally, an appellate court will find plain error only when a miscarriage of justice would otherwise occur.

3. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a question of law.

4.__:__. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance.

5. Effectiveness of Counsel: Records: Appeal and Error. The record is sufficient to review a claim of ineffective assistance of counsel on direct appeal if it establishes either that trial counsel's performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law, or that trial counsel's actions could not be justified as a part of any plausible trial strategy. Conversely, an ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.

6. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith.

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[314 Neb. 933] 7.__:__. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2022), does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime.

8.__:__. Inextricably intertwined evidence includes evidence that forms part of the factual setting of the crime and evidence that is so blended or connected to the charged crime that proof of the charged crime will necessarily require proof of the other crimes or bad acts. Evidence of other crimes or bad acts is also inextricably intertwined with the charged crime if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.

9. Evidence: Words and Phrases. To be relevant, evidence must be probative and material. Evidence is probative if it has any tendency to make the existence of a fact more or less probable than it would be without the evidence. A fact is material if it is of consequence to the determination of the case.

10. Rules of Evidence. The fact that evidence is prejudicial is not enough to require exclusion under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), because most, if not all, of the evidence a party offers is calculated to be prejudicial to the opposing party; it is only the evidence which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under rule 403.

11. 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.

12. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or may undermine a defendant's right to a fair trial.

13. Trial: Prosecuting Attorneys: Juries. A prosecutor's conduct that does not mislead and unduly influence the jury is not misconduct.

14. Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court concludes that a prosecutor's acts were misconduct, the court next considers whether the misconduct prejudiced the defendant's right to a fair trial.

15. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct prejudices a defendant's right to a fair trial when the misconduct so infects the trial that the resulting conviction violates due process.

16. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial as a whole.

17. Trial: Prosecuting Attorneys: Appeal and Error. In determining whether a prosecutor's improper conduct prejudiced the defendant's

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[314 Neb. 934] right to a fair trial, an appellate court considers the following factors: (1) the degree to which the prosecutor's conduct or remarks tended to mislead or unduly influence the jury, (2) whether the conduct or remarks were extensive or isolated, (3) whether defense counsel invited the remarks, (4) whether the court provided a curative instruction, and (5) the strength of the evidence supporting the conviction.

18. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record; otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.

19. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

20. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

21.__:__. To show that counsel's performance was deficient, a defend ant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

22.__:__. To show prejudice in a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

23. Effectiveness of Counsel: Words and Phrases. A reasonable probability of prejudice from ineffective assistance of counsel is a probability sufficient to undermine confidence in the outcome.

24. Search and Seizure: Warrantless Searches. Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions that must be strictly confined by their justifications.

25. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument to the trial court.

26. Constitutional Law: Miranda Rights: Self-Incrimination. The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), ensure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process. If the suspect indicates that he or she wishes to remain silent or that he or she wants an attorney, the interrogation must cease.

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[314 Neb. 935] 27. Confessions: Miranda Rights: Police Officers and Sheriffs. Before the police are under a duty to cease an interrogation, the suspect's invocation of the right to cut off questioning must be unambiguous, unequivocal, or clear.

28. Trial: Rules of Evidence: Police Officers and Sheriffs: Evidence: Extrajudicial Statements. Statements by law enforcement officials on the veracity of the defendant or other witnesses, made within a recorded interview played for the jury at trial, are to be analyzed under the ordinary rules of evidence. Such commentary is not admissible to prove the truth of the matter asserted. However, it may be independently admissible for the purpose of providing necessary context to a defendant's statements in the interview which are themselves admissible.

29. Hearsay: Words and Phrases. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

30. Hearsay. An out-of-court statement is not hearsay if the proponent offers it for a purpose other than proving the truth of the matter asserted.

31. Trial: Evidence. The erroneous admission of evidence is generally harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact.

32. Witnesses. The credibility of a witness is always relevant.

33. Sentences: Probation and Parole. A sentence of life imprisonment "without the possibility of parole" is erroneous, but not void.

Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge. Affirmed as modified.

Thomas C. Riley, Douglas County Public Defender, for appellant.

Michael T. Hilgers, Attorney General, and Stacy M. Foust for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

FUNKE, J.

I. INTRODUCTION

Mabior M. Mabior appeals his convictions in the district court for Douglas County, Nebraska, for two counts of first

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[314 Neb. 936] degree murder and two counts of use of a firearm to commit a felony. Mabior's appeal focuses on the discovery of an extended magazine for a firearm and a receipt for an extended magazine and statements made in his interviews with police. Mabior also focuses on certain evidence admitted and on certain statements by the prosecution at trial, most notably including those regarding the prior shooting of one of the...