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January 26, 1996






White, C.J., Caporale, Fahrnbruch, Lanphier, and Gerrard, JJ., and Steinke, D.J., and Norton, D.J., Retired.

Per Curiam.


Filed January 26, 1996.

1. Convictions: Appeal and Error.

In reviewing a criminal conviction, it is not the province of the appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, and the verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Motions for Mistrial: Appeal and Error.

The decision of whether to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion.

3. Trial: Prosecuting Attorneys: Miranda Rights.

A prosecutor's use of a defendant's postarrest, post-Miranda silence is fundamentally unfair because Miranda warnings imply not only that a person has the right to remain silent but that his or her silence will not be used against him or her as evidence of guilt.

4. Jury Instructions: Proof: Appeal and Error.

In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.

Petition for further review from the Nebraska Court of Appeals, Connolly, Irwin, and Wright, Judges, on appeal thereto from the District Court for Douglas County, Michael McGill, Judge. Judgment of Court of Appeals reversed, and cause remanded for a new trial.

The defendant, Sherline R. Woods, was convicted by a jury of manslaughter and use of a knife to commit a felony. Woods was sentenced to 5 to 10 years' imprisonment for the manslaughter conviction and a consecutive sentence of 2 to 4 years' imprisonment for the conviction of use of a knife to commit a felony. She appealed to the Nebraska Court of Appeals.

The Court of Appeals held that Woods' failure to give a taped statement had no probative value, that the prosecutor had no right to ask the investigating officer whether Woods had refused to give a tape-recorded statement, and that the trial court erred in allowing the prosecution to ask this question. However, the Court of Appeals further found that this error was harmless because the jury heard evidence that Woods provided more than one version of the events on the night she was arrested, including her admission that she held the knife that killed the victim. The Court of Appeals therefore held that the fact that it was elicited at trial that Woods refused to give a tape-recorded statement did not materially influence the outcome of the jury's verdict.

The Court of Appeals also determined that the trial court's instruction to the jury concerning intoxication was not prejudicial or did not otherwise adversely affect Woods' right of asserting a claim of self-defense.

The Court of Appeals affirmed the judgment of the trial court. State v. Woods, 94 NCA No. 8, case No. A-92-1095 (not designated for permanent publication). We reverse the decision of the Court of Appeals and remand this cause of action to the district court for a new trial.


Woods and the deceased, Cheryl Culliver, were involved in a lesbian relationship. During December 1991, Culliver occasionally lived with Woods. Woods testified that she carried a knife for protection and that she had it with her when she went to work on December 20, 1991, at 6 a.m. She called Culliver in the afternoon and told her that she would be late because she was going out with some coworkers.

Woods returned to her apartment after 1 a.m. and found Culliver and a man in the kitchen area smoking crack cocaine. She became upset and asked the man and Culliver to leave. Woods and Culliver continued to talk after the man left. Woods asked Culliver three or four times to leave the apartment. When Culliver refused to leave, Woods called her mother and then called a neighbor, Denise Coleman, for help in getting Culliver to leave. When Coleman arrived, Culliver had pinned Woods on the floor and was "head-butting" her. Eventually, Culliver let Woods up, and Woods pushed Culliver off.

In Coleman's presence, Woods again asked Culliver to leave. Culliver again refused to leave and began pushing and head-butting Woods. Coleman described Culliver as intoxicated and very aggressive. She said that the left side of Woods' face was beginning to swell from the head-butting.

At some point, Woods went into the kitchen, got a knife which was on top of the refrigerator, and walked out of the kitchen, holding the knife to attempt to scare Culliver into leaving. Coleman testified that Woods never held the knife in a menacing or threatening manner or pointed the knife at Culliver when Woods asked her to leave. Woods then tried to persuade Coleman to assist Woods in talking Culliver into leaving. Coleman continued to attempt to get Culliver to leave and questioned both Woods and Culliver, "Why are y'all acting like this?" Woods responded, "I'm not, I'm trying to get her to leave." Woods stated that she thought Culliver was crazy. She stated that when she picked up the knife, it did not seem to improve the situation with Culliver. In fact, Woods said, Culliver got worse to the point that she thought Culliver was going to also do something to the neighbor, Coleman. Woods laid the knife on a mattress and reached for the telephone to call the police. Culliver then ran toward Woods to stop her from making the call. Woods threw down the phone, grabbed the knife, and told Culliver to get out. Culliver continued moving toward Woods and said, "What are you going to do, are you going to kill me?" Woods kept moving back until she did not have any more room.

Culliver and Woods began struggling, and Woods ended up with her back to the wall of the apartment. Culliver's hand was on top of Woods' hand which was on the knife. Woods said that Culliver leaned toward her and that as Woods pushed Culliver away, Woods pulled the knife out of Culliver.

Coleman said the knife then went up in the air. She went to Woods and Culliver, took their arms and pushed them against the wall, and used her hips to push the women away from the wall. The knife fell, and Coleman picked it up and threw it in the kitchen sink. When she returned from the kitchen, Woods and Culliver were still struggling. Coleman noticed blood on Culliver's shirt and said, "Damn, Sherline, she's cut." Woods and Culliver quit struggling, and Woods pushed Culliver away and tore her shirt open to see the wound. Woods then laid Culliver down on the mattress.

The 911 emergency dispatcher testified that he received a call reporting that a person had been cut. The caller stated that the perpetrator had left. At the scene, Woods told Officer Donald Stephens that she had witnessed the stabbing and that it was done by a black male named "Clyde." As Woods was being transported to police headquarters, she said that Culliver had been smoking crack cocaine with a male and that in the process of an argument, the male picked up the knife and stabbed Culliver.

At police headquarters, Officer James Wilson told Woods that Culliver was dead. After Wilson administered the Miranda warnings to Woods, Woods told him that she got off work at 3 p.m. and called Culliver to tell her she would not be home for a while because she was going out with some friends. She went home about 6 p.m. and then left again. When she returned at about 1 a.m., she found a man named "Albert" smoking crack cocaine with Culliver. Woods became upset and began to argue with Culliver and asked her to leave. Woods said that she got a knife from the kitchen and that during the argument, Culliver lunged at the knife, causing the stab wound.

A pathologist, Blaine Roffman, testified that the stab wound in the left chest was approximately 16 millimeters wide and approximately 6 inches deep. The wound penetrated the chest at approximately the fifth rib, entering the pericardial sac in the top surface of the left part of the heart. The stab wound was the only significant finding which could have resulted in death. He said the knife entered the body straight, like an arrow, with no downward motion. He stated that in general, if a stab wound enters the heart and the knife is taken out, blood will fill the pericardial sac in 3 minutes, causing the heart to stop. In the next 3 to 5 minutes, resuscitation can occur before the victim is brain-dead. He opined that a person could still engage in physical activity for a brief time after sustaining this type of injury. While a significant degree of force is necessary for a knife to penetrate the rib, the force could be the result of a person thrusting the knife or a person falling on it. Roffman said blood tests showed Culliver's blood alcohol level was .242 and that she had a cocaine level of 69 nanograms per milliliter.

During the jury trial, the prosecutor called Officer Wilson to testify about Woods' confession. Based on the following questions by the prosecutor and the answers by Officer Wilson, Woods moved for a mistrial. The court overruled that motion. The testimony was as follows:

(Prosecutor:) After you got the statement from her, is it your procedure, as it was in the case of Denise Coleman, ...

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