State v. Trail

Decision Date10 November 2022
Docket NumberS-21-557.
Citation312 Neb. 843,981 N.W.2d 269
Parties STATE of Nebraska, appellee, v. Aubrey C. TRAIL, appellant.
CourtNebraska Supreme Court

Benjamin H. Murray, of Murray Law, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, Senior Assistant Attorney General, for appellee.

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

Freudenberg, J.


The defendant was convicted by a jury of murder in the first degree and criminal conspiracy to commit first degree murder. He was also convicted, pursuant to a plea, of improper disposal of human skeletal remains. A three-judge panel sentenced the defendant to death. The defendant asserts on appeal that the three-judge panel erred in determining the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases. Alternatively, he argues Nebraska's death penalty scheme is unconstitutional because it allows a panel of judges rather than a jury to make findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it creates a conviction-prone jury. Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy and murder charges, the court's release of the victim's mother from sequestration after she testified, the denial of his motion for a mistrial after a verbal outburst and act of self-harm in front of the jury, and the denial of a motion for a new trial after evidence was submitted allegedly demonstrating the self-harm would not have occurred but for the alleged misconduct of jail staff. We affirm.


The State's amended information charged Aubrey C. Trail with one count of murder in the first degree, in violation of Neb. Rev. Stat. § 28-303(1)(a) (Cum. Supp. 2020); one count of improper disposal of human skeletal remains, in violation of Neb. Rev. Stat. § 28-1301(2)(b) (Reissue 2016); and one count of criminal conspiracy to commit first degree murder, in violation of Neb. Rev. Stat. § 28-202 (Cum. Supp. 2020). The victim was Sydney Loofe (Sydney), who was 24 years old at the time of her death on or about November 15, 2017.

The operative information gave notice that the State intended to adduce evidence of the aggravating circumstances (1) that the murder manifested exceptional depravity by ordinary standards of morality and intelligence and (2) that Trail has a substantial prior history of serious assaultive or terrorizing criminal activity. The State later removed the notice of second aggravator.

As part of his trial strategy, Trail pled no contest to the improper disposal of human skeletal remains. His plea was accepted prior to the beginning of the jury trial on the remaining two counts. The theory of the defense was that Trail was involved in a consensual sexual relationship with a group of women. This group always included Bailey Boswell, with whom Trail lived. The group also at various points included Ashley Hills, Anastasia Golyakova, and Kaitlyn Brandle. The defense argued that because Hills and Golyakova had recently left the group, Trail was hoping Sydney would become a new member. According to the defense, Sydney was interested in joining the group and was accidentally killed while the recipient of consensual erotic asphyxiation. Trail then panicked and dismembered and disposed of Sydney's remains.


Before trial, defense counsel moved to "prevent death qualification of the jury." In the motion, defense counsel objected to any mention—in the jury questionnaires, during jury selection, or during the trial of guilt or innocence—of the possible sentences Trail might receive. Defense counsel asserted that informing the jury of the possible penalty of death is unnecessary and results in excluding those jurors who cannot perform their duties because of their beliefs on the death penalty. According to defense counsel, this process results in those charged with capital offenses being unjustifiably subjected to conviction-prone juries, which violates equal protection under the 14th Amendment to the U.S. Constitution and article 1, § 3, of the Nebraska Constitution ; the right under the 6th Amendment to the U.S. Constitution to a fair and impartial cross-section of jurors; and the right to heightened reliability in capital cases as protected by the 8th Amendment to the U.S. Constitution and article I, §§ 9 and 15, of the Nebraska Constitution.

As is relevant to this appeal, defense counsel asserted that "empirical research has demonstrated that the systematic exclusion of jurors who have a moral objection to the death penalty results in capital juries that tend to be ... more conviction-prone" and that these views are not representative of a fair cross-section of the community. Further, asking jurors about their views on the death penalty magnifies the effect of conviction-prone beliefs. While defense counsel acknowledged that the U.S. Supreme Court, in Lockhart v. McCree ,1 rejected a claim that the process of death qualification violates the fair-cross-section requirement of the Sixth Amendment and the right to an impartial jury, defense counsel cited in the written motion to various articles describing additional studies in the 30-plus years since McCree , indicating the process of death qualification creates conviction-prone juries. No testimony or other evidence was adduced in support of the motion.

Defense counsel stated that the justification for death qualification presupposes a statutory scheme in which a single jury determines both the guilt and the penalty. Defense counsel argued that because in Nebraska, the jury does not determine the sentence in the penalty phase, informing the jury of the possible sentence of death serves no legitimate purpose. Accordingly, a potentially conviction-prone jury created by death qualification cannot pass the heightened scrutiny allegedly applicable to this conviction-prone classification of jurors.

The court overruled the motion and proceeded with voir dire. During voir dire, defense counsel renewed the objection to "the death qualification of each individual juror during jury selection." The renewed objection was overruled.

Juror questionnaires and the judge's statement from the bench during voir dire informed the potential jurors that the charges Trail faced could result in the death penalty. The judge explained that the sentence itself would be determined by a panel of judges, but that if Trail were found guilty of first degree murder, the jurors would be asked to listen to some more evidence and determine if the State had proved additional elements, after which their duty would be done and the matter would go to the panel of judges for sentencing.

During the jury selection process, jurors Nos. 104 and 126 stated in chambers that their views against the death penalty would impair their ability to be fair and impartial. Both jurors were struck for cause on the State's motion. Defense counsel did not object to them being excused.

Jurors Nos. 23, 60, 78, 245, 261, and 275 were struck for cause on defense counsel's motion because they indicated their belief in Trail's guilt would interfere with their ability to be fair and impartial.

Jurors Nos. 108, 113, and 262 indicated they did not believe in the death penalty but could perform their factfinding duties in a fair and impartial manner. Jurors Nos. 113 and 262 were subject to peremptory challenges, but juror No. 108 was not.


Defense counsel moved pursuant to Neb. Rev. Stat. § 29-2002 (Reissue 2016) to sever the trial on the murder charge from the other charges. As relevant to this appeal, defense counsel asserted joinder would prejudice Trail because evidence admissible in support of the conspiracy charge would not be admissible in support of the murder charge, if those two charges were tried separately. Defense counsel explained there would be no evidence proving the conspiracy that would be truly independent of the murder charge. Defense counsel believed that, because of this, there could be no prima facie case through independent evidence establishing the existence of the underlying conspiracy, which is necessary to admit testimony under the coconspirator exception to the hearsay rule. The defense argued the State was trying to introduce hearsay evidence to establish a conspiracy, with its more flexible hearsay rules, and then use that conspiracy to permit the introduction of otherwise inadmissible hearsay testimony into evidence to support the murder charge.

The State responded it intended to establish, without "impermissible hearsay," a prima facie case of conspiracy, before attempting to introduce evidence under the coconspirator exception to the hearsay rule. The evidence to establish the conspiracy, explained the State, would primarily consist of the testimony of Hills, Golyakova, and Brandle, all of whom Trail had tried to convince to participate in a murder. The State asserted their testimony would be admissible as evidence of premeditation on the murder charge and would be introduced into evidence even if the trial of the conspiracy count were not joined with the murder count.

The court overruled the motion to sever. However, it warned the State that "it needs to structure its case to avoid the bootstrapping problems and that I will be keeping an eye on the case as it proceeds."


Before trial commenced, the court granted defense counsel's motion to sequester witnesses. Sydney's mother was the first witness to testify at trial. After being cross-examined by defense counsel, the State asked that Sydney's mother be released from her subpoena. The State said...

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3 cases
  • State v. Boppre
    • United States
    • Nebraska Supreme Court
    • September 15, 2023
    ...See, State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023); Humphrey v. Smith, 311 Neb. 632, 974 N.W.2d 293 (2022). [54] State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022). [55] See Hill, supra note 21. [56] Id. at 521, 955 N.W.2d at 309. [57] Hill, supra note 21. [58] Accord Robertson, su......
  • State v. Samuels
    • United States
    • Nebraska Court of Appeals
    • May 23, 2023
    ... ... Figures , 308 Neb. 801, 957 ... N.W.2d 161 (2021) ...          A ... defendant faces a higher threshold than merely showing a ... possibility of prejudice when attempting to prove error ... predicated on the failure to grant a mistrial ... [31 Neb.App. 942] State v. Trail , 312 Neb. 843, 981 ... N.W.2d 269 (2022). The defendant must prove that the alleged ... error actually prejudiced him or her, rather than creating ... only the possibility of prejudice. Id. Absent ... evidence to the contrary, the legal system presumes that ... jurors, to the extent they ... ...
  • State v. Garcia
    • United States
    • Nebraska Supreme Court
    • September 8, 2023
    ...note 7. [36] Brief for appellant at 169. [37] See State v. Stickelman, 207 Neb. 429, 434, 299 N.W.2d 520, 524 (1980). [38] State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022). [39]Id. [40]See id. [41]Id. [42]Id. [43]Id. [44] State v. Beeder, 270 Neb. 799, 707 N.W.2d 790 (2006), disapproved ......

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