State v. Stricklin
| Decision Date | 03 April 2015 |
| Docket Number | No. S–14–182,S–14–182 |
| Citation | 861 N.W.2d 367 |
| Parties | State of Nebraska, appellee, v. Derrick U. Stricklin, appellant. |
| Court | Nebraska Supreme Court |
Jeremy C. Jorgenson for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
3. Rules of Evidence.In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
4. Rules of Evidence: Appeal and Error.Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.
5. Jury Instructions: Appeal and Error.Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.
6. Motions for New Trial: Appeal and Error.A trial court's order denying a motion for new trial is reviewed for an abuse of discretion.
7. Criminal Law: Trial.In criminal prosecutions, the withdrawal of a rest in a trial on the merits is within the discretion of the trial court.
8. Trial: Joinder.There is no constitutional right to a separate trial.
9. Trial: Joinder: Proof: Appeal and Error.The burden is on the party challenging a joint trial to demonstrate how and in what manner he or she was prejudiced.
10. Trial: Joinder: Indictments and Informations.The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial.
11. Trial: Joinder.Consolidation is proper if the offenses are part of a factually related transaction or series of events in which both of the defendants participated.
12. Rules of Evidence.Under Neb. Evid. R. 402, Neb.Rev.Stat. § 27–402 (Reissue 2008), all relevant evidence is admissible unless there is some specific constitutional or statutory reason to exclude such evidence.
13. Trial: Evidence.Evidence which is not relevant is not admissible.
14. Evidence: Words and Phrases.Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
15. Trial: Joinder.A defendant is not considered prejudiced by a joinder where the evidence relating to both offenses would be admissible in a trial of either offense separately.
16. Rules of Evidence: Hearsay: Proof.Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.
17. Rules of Evidence: Rules of the Supreme Court: Hearsay.Hearsay is not admissible except as provided by the rules of evidence or by other rules adopted by the statutes of the State of Nebraska or by the discovery rules of the Nebraska Supreme Court.
18. Rules of Evidence: Hearsay.When an out-of-court statement relates the content of another out-of-court statement, there must be an independent hearsay exception for each statement.
19. Confessions: Rules of Evidence.For a statement against penal interest, the question under Neb. Evid. R. 804(2)(c), Neb.Rev.Stat. § 27–804(2)(c) (Reissue 2008), is always whether the statement was sufficiently against the declarant's penal interest that a reasonable person in the declarant's position would not have made the statement unless he or she believed it to be true.
20. Confessions: Rules of Evidence.As an initial matter, to qualify as a statement against penal interest under Neb. Evid. R. 804(2)(c), Neb.Rev.Stat. § 27–804(2)(c) (Reissue 2008), the statement must be self-inculpatory.
21. Confessions: Rules of Evidence: Words and Phrases.A “statement” within the meaning of Neb. Evid. R. 804(2)(c), Neb.Rev.Stat. § 27–804(2)(c) (Reissue 2008), is a specific individual statement that a proponent offers into evidence rather than the entire narrative of which the statement is a part.
22. Rules of Evidence: Hearsay.Individual remarks under examination pursuant to the hearsay exception of Neb. Evid. R. 804(2)(c), Neb.Rev.Stat. § 27–804(2)(c)
(Reissue 2008), must meet the test of whether the particular remark at issue meets the standard set forth in the rule.
23. Rules of Evidence: Hearsay.In determining whether a statement is admissible under the residual hearsay exception to the hearsay rule, a court considers five factors: a statement's trustworthiness, the materiality of the statement, the probative importance of the statement, the interests of justice, and whether notice was given to an opponent.
24. Rules of Evidence: Hearsay.In determining admissibility under the residual hearsay exception, a court must examine the circumstances surrounding the declaration in issue and may consider a variety of factors affecting the trustworthiness of a statement. A court may compare the declaration to the closest hearsay exception as well as consider a variety of other factors affecting trustworthiness, such as the nature of the statement, that is, whether the statement is oral or written; whether a declarant had a motive to speak truthfully or untruthfully, which may involve an examination of the declarant's partiality and the relationship between the declarant and the witness; whether the statement was made under oath; whether the statement was spontaneous or in response to a leading question or questions; whether a declarant was subject to cross-examination when the statement was made; and whether a declarant has subsequently reaffirmed or recanted the statement.
25. Rules of Evidence: Hearsay: Appeal and Error.Because of the factors a trial court must weigh in deciding whether to admit evidence under the residual hearsay exception, an appellate court applies an abuse of discretion standard to review hearsay rulings under this exception.
26. Trial: Testimony: Appeal and Error.The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.
27. Rules of Evidence: Witnesses: Prior Convictions.When impeaching a witness pursuant to Neb. Evid. R. 609, Neb.Rev.Stat. § 27–609 (Reissue 2008), after the conviction is established, the inquiry must end there, and it is improper to inquire into the nature of the crime, the details of the offense, or the time spent in prison as a result thereof.
28. Rules of Evidence: Witnesses.Neb. Evid. R. 608(2), Neb.Rev.Stat. § 27–608(2) (Reissue 2008), permits questioning during cross-examination only on specific instances of conduct not resulting in a criminal conviction.
29. Rules of Evidence.Under Neb. Evid. R. 403, Neb.Rev.Stat. § 27–403 (Reissue 2008), evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
30. Jury Instructions: Appeal and Error.The failure to object to instructions after they have been submitted to counsel for review will preclude raising an objection on appeal, unless there is a plain error indicative of a probable miscarriage of justice.
31. Trial: Motions for Mistrial.When a party has knowledge during trial of irregularity or misconduct, the party must timely assert his or her right to a mistrial.
32. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error.A party who fails to make a timely motion for mistrial based on prosecutorial
misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct.
33. Rules of Evidence: Jurors: Affidavits.Neb. Evid. R. 606(2), Neb.Rev.Stat. § 27–606(2) (Reissue 2008), does not allow a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations.
34. Jury Misconduct: Trial: Appeal and Error.When an allegation of jury misconduct is made and is supported by a showing which tends to prove that serious misconduct occurred, the trial court should conduct an evidentiary hearing to determine whether the alleged misconduct actually occurred. If it occurred, the trial court must then determine whether it was prejudicial to the extent that the defendant was denied a fair trial. If the trial court determines that the misconduct did not occur or that it was not prejudicial, adequate findings are to be made so that the determination may be reviewed.
35. Witnesses: Juror Misconduct: Appeal and Error.An appellate court reviews the trial court's determinations of witness credibility and historical fact for clear error and reviews de novo the trial court's ultimate determination whether the defendant was prejudiced by juror misconduct.
36. Criminal Law: Jury Misconduct: Proof.A criminal defendant claiming jury misconduct bears the burden of proving, by a preponderance of the evidence, (1) the existence of jury misconduct and (2) that such misconduct was prejudicial to the extent that the defendant was denied a fair trial.
37. Criminal Law: Juror Misconduct: Presumptions: Proof.In a criminal case, misconduct involving an improper communication between a nonjuror and a juror gives rise to a rebuttable presumption of prejudice which the State has the burden to overcome.
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