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State v. Phillips

Supreme Court of Nebraska

December 6, 2013

State of Nebraska, appellee,
Tyrese A. Phillips, appellant.

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Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge. Affirmed.

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

Jon Bruning, Attorney General, and Erin E. Tangeman, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus bye the Court

1. Constitutional Law: Self-Incrimination: Appeal and Error. A court's decision to allow a witness to invoke his or her Fifth Amendment right against self-incrimination is reviewed for an abuse of discretion.

2. 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 such discretion a factor in determining admissibility.

3. 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.

4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination whether the court admitted evidence over a hearsay

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objection or excluded evidence on hearsay grounds.

5. 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 hearsay rulings under the residual hearsay exception.

6. Constitutional Law: Due Process. The determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.

7. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts.

8. Motions for Mistrial: Appeal and Error. Whether to grant a motion for mistrial is within the trial court's discretion, and an appellate court will not be disturb its ruling unless the court abused its discretion.

9. Motions for New Trial: Prosecuting Attorneys: Appeal and Error. An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct for an abuse of discretion of the trial court.

10. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial depends largely on the facts of each case.

11. Constitutional Law: Self-Incrimination. The provision in the Fifth Amendment to the U.S. Constitution that no person shall be compelled to give evidence against himself or herself of an incriminating nature must be accorded liberal construction in favor of the right it was intended to secure.

12. Constitutional Law: Self-Incrimination. The Fifth Amendment privilege not only permits a person to refuse to testify against himself or herself during a criminal trial in which he or she is a defendant, but also grants him or her the privilege to refuse to answer [286 Neb. 975] questions put to him or her in any other proceeding, civil or criminal, formal or informal, where the answers might tend to incriminate him or her in future criminal proceedings.

13. Constitutional Law: Witnesses: Self-Incrimination. While a witness may invoke the Fifth Amendment to avoid answering questions, the witness' assertion of the privilege does not by itself establish the risk of incrimination; instead, the court must make inquiry to determine itself whether answering the questions would raise Fifth Amendment concerns.

14. Constitutional Law: Witnesses: Self-Incrimination. The privilege against compulsory self-incrimination afforded by the Fifth Amendment not only extends to answers that would in themselves support a conviction but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant. It need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.

15. Immunity: Witnesses: Prosecuting Attorneys. Absent a motion by the county attorney or other prosecuting attorney, a trial court lacks authority to grant immunity and order a witness to testify.

16. Confessions: Rules of Evidence: Words and Phrases. A " statement" within the meaning of Neb.Rev.Stat. § 27-804(2)(c) (Reissue 2008) is a specific individual statement that a proponent offers

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into evidence rather than the entire narrative of which the statement is a part; § 27-804(2)(c) uses the term " statement" in a narrow sense to refer to a specific declaration or remark incriminating the speaker and not more broadly to refer to the entire narrative portion of the speaker's confession.

17. 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.

18. Rules of Evidence: Hearsay. The residual hearsay exception is to be used rarely and only in exceptional circumstances.

19. Criminal Law: Constitutional Law: Due Process: Rules of Evidence. Whether rooted directly in the Due Process Clause of the 14th Amendment or in the Compulsory Process or Confrontation Clauses of the 6th Amendment, the federal Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. However, the accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.

[286 Neb. 976] 20. Constitutional Law: Witnesses: Self-Incrimination: Waiver. A defendant's right to present a defense is not absolute and does not include the right to compel a witness to waive his or her Fifth Amendment privilege against self-incrimination.

21. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred.


Miller-Lerman, J.

Tyrese A. Phillips appeals his convictions in the district court for Douglas County for second degree murder and use of a deadly weapon to commit a felony. Phillips generally claims that the court erred when it allowed a witness to assert his Fifth Amendment privilege against self-incrimination and failed to grant the witness use immunity, thereby preventing testimony that Phillips asserts was helpful to his defense. He claims in the alternative that the court should have admitted

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the witness' recorded statement to police under a hearsay exception. He claims the foregoing rulings denied him a complete defense. He also claims that a mistrial should have been declared or that a new trial should have been granted because the State knew a witness would testify falsely and withheld exculpatory evidence when it did not inform him prior to trial of certain statements made by a potential witness. We reject Phillips' assignments of error and affirm his convictions and sentences.


The State charged Phillips with first degree murder and use of a deadly weapon to commit a felony as a result of [286 Neb. 977] an incident in which Phillips shot and killed Joseph Piper. The incident involved a confrontation between two groups of people that included several high school students. Phillips and Piper were on opposite sides of the confrontation. There were various witnesses at trial who described the incident, including participants and observers. Each witness told his or her own version of events, but the following description incorporates testimony of these witnesses.

The confrontation came about as a result of a dispute between Phillips' friend, Mitch Harrington, and Piper's friend, Mario Gutierrez. Gutierrez was upset with Harrington because Harrington had argued with Gutierrez' girlfriend and called her derogatory names. It was decided that Gutierrez would fight Harrington after school on April 5, 2011. On that day, Harrington met at his house with Phillips and two other friends, one of whom was Tyler Weakly, who were to give Harrington a ride and be his backup for the fight. They left the house in Weakly's car. They had two baseball bats in the car, and Phillips was carrying a handgun. That same afternoon, Gutierrez and Piper went to the home of Jacob Jensen, where they and other friends of Jensen, including Duane Cox, helped Jensen move some furniture before they headed out for the fight.

Harrington and his friends arrived at a discount store's parking lot, where it had been determined the fight would take place. When they arrived, Gutierrez was present with a group of approximately 20 people who were there either to support Gutierrez or to watch the fight. Harrington and Gutierrez engaged in a brief fist fight but suspended the fight after learning that the police had been called to that location.

Harrington and Gutierrez decided to move to a local city park to continue the fight. Harrington's group, which included Phillips, arrived at the park before Gutierrez; they exchanged words with some of Gutierrez' friends who were already at the park, but no fighting broke out. About a half hour later, a truck and a Ford Expedition driven by Jensen and Cox, respectively, arrived. Several men, including Gutierrez, got out of the vehicles; some of them were carrying what looked to be bats or pipes. Gutierrez' group began [286 Neb. 978] walking toward the vehicle in which Harrington's group sat. Members of Gutierrez' group were yelling things to antagonize Harrington's group.

Phillips got out of the vehicle. He pulled out his gun and cocked it as he walked toward Gutierrez' group. Phillips fired some shots into the air, but members of Gutierrez' group said that the gun was " fake" and they kept advancing toward Phillips. Piper, who was part of Gutierrez' group, was yelling and waving his hands in the air as the group advanced toward Phillips. Phillips fired some more shots, this time into the ground. The shots caused dust and dirt to fly up, which in turn caused most members of Gutierrez' group to retreat to their vehicles. Piper was the

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sole member of the group who continued toward Phillips.

Piper and Phillips exchanged words, while Piper made gestures that some witnesses described as gang signs. When Piper began to return to the vehicles, Phillips ran up to him and put the gun to Piper's head. They exchanged more words before Phillips stepped back and shot Piper in the chest. Piper immediately fell to the ground. Phillips stood over Piper and fired more shots at him as he lay on the ground. One witness testified that Phillips told the Gutierrez group to " ‘ [c]ome pick up your dead homey.’ "

Weakly was driving the vehicle that was occupied by members of Harrington's group. Weakly drove near Phillips, and Phillips got into the vehicle. The vehicle took off at a high rate of speed. Members of Gutierrez' group took off after them, but the vehicle driven by Weakly eventually lost them. Weakly took Harrington and Phillips to Phillips' home.

Piper died from the gunshot wounds, and Phillips was arrested. At Phillips' trial, the State presented testimony from various witnesses, including witnesses who had participated in or had seen the confrontation between the two groups.

Phillips' theory of defense was that he acted in self-defense and in defense of others and, alternatively, that if he was guilty of a crime, it was the lesser offense of manslaughter. Key to Phillips' defense were his claims that Piper had a gun and that he aimed it at Phillips. In his defense, Phillips presented several witnesses and testified himself.

[286 Neb. 979] Phillips testified, inter alia, that before he got out of the vehicle and as Piper and the others were advancing toward the vehicle, Piper motioned to his waistband and lifted his shirt. Phillips saw a black handle. He got out of the car and fired shots into the air, but the other group said he was shooting blanks and kept advancing while yelling derogatory terms, including racial slurs, at Phillips. He shot at the ground to show them that the gun was real. While some of the group retreated, Piper was " patting his waistline saying something," which action Phillips described as " gesturing that he wanted to shoot." Phillips started to retreat, but someone from the other group yelled a derogatory term at Phillips and he turned. Phillips testified that he saw Piper aiming a gun at him. Phillips fired his gun at Piper.

Contrary to the testimony of other witnesses, Phillips testified that he stopped shooting when Piper hit the ground. A witness for the State who conducted the autopsy testified that six bullets hit Piper and that he died from multiple gunshot wounds. Phillips testified that he ran up to check Piper's condition and that he told Piper's friends to get him to a hospital. Phillips started to back up, and he saw Gutierrez and one of his friends run up to Piper and take the gun from Piper. Weakly then drove up to Phillips and told him to get in the car. Phillips did, and they left the park while being chased by the other group.

Because various witnesses had testified that Piper did not have a gun, Phillips attempted to bolster his defense by presenting testimony from Weakly that Weakly had seen Piper with a gun. Hours after the shooting on April 5, 2011, Weakly was arrested and questioned by police. Weakly gave the police a statement regarding the incident in which he stated, inter alia, that when Gutierrez' group arrived at the park and was walking toward the vehicle occupied by Weakly, Phillips, and others, Piper lifted his shirt and displayed a gun in his waistband. Weakly also stated that Piper was showing gang signs and that

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Phillips shot Piper after Piper lifted his shirt a second time. After he gave his statement to police, Weakly was charged with being an accessory to a felony. The charge against Weakly was pending at the time of Phillips' trial.

[286 Neb. 980] Phillips knew that Weakly planned to invoke his Fifth Amendment right against self-incrimination in order to avoid testifying at Phillips' trial. Therefore, Phillips made a showing to the court outside the presence of the jury in order to address issues regarding Weakly's testimony. During the trial, Phillips called Weakly as a witness. After giving his name and testifying that he had been charged as an accessory to a felony in connection with the charges against Phillips and that he had given a statement to police, Weakly asserted his Fifth Amendment right to remain silent and would not answer further questions. The court ruled that based on Weakly's invocation of his Fifth Amendment rights, the court would not require Weakly to answer Phillips' questions. Phillips later requested the court to order the State to grant use immunity to Weakly to allow Weakly to testify at Phillips' trial. The court refused the request.

When it was clear that Weakly would be unavailable as a witness due to his invocation of his Fifth Amendment rights, Phillips attempted to have a recording of Weakly's statement to police admitted into evidence. Phillips summarized the content of the recorded statement and argued that the statement was admissible as an exception to the hearsay rule. Phillips focused on Weakly's statement that Piper had a gun and specifically argued that the statement could be admitted either as a statement against penal interest or under the residual hearsay exception. The court ruled that Weakly's statement that he saw Piper had a gun did not expose Weakly to criminal liability and that therefore, the statement did not qualify as a statement against penal interest. The court further ruled that there were no equivalent guarantees of trustworthiness to make the statement admissible under the residual hearsay exception. The court concluded that the statement was inadmissible hearsay.

During Phillips' defense, he called Cox as a witness. Cox was a part of the group that included Gutierrez and Piper during the confrontation. Cox had been listed as a witness for the State, but he was not called by the State. Cox testified regarding the confrontation and stated that he and Jensen drove vehicles to the park. When Phillips asked whether Cox had any [286 Neb. 981] weapons with him, Cox testified that he had a pipe. Phillips asked whether Cox saw anyone besides himself armed with any type of weapon. Cox testified that another member of his group had a pipe and that Jensen " had a pistol." Phillips asked where the gun was located, and Cox testified, " It's in his center console where he always has it." Phillips asked how Cox was made aware that Jensen had a gun, and Cox replied, " Because I know [Jensen]."

Phillips unsuccessfully tried to question Cox regarding Cox's interview with prosecutors before trial. Phillips made an offer of proof outside the presence of the jury. Phillips questioned Cox, who acknowledged that when he first talked to the police, he did not mention that Jensen had a gun. Cox also testified that " several weeks" before the trial, he spoke with the prosecutors and told them for the first time that Jensen had a gun.

After Cox was excused, Phillips moved for a mistrial based on prosecutorial misconduct. Phillips asserted that he learned for the first time during Cox's testimony at trial that Cox had informed prosecutors that Jensen had a gun. He argued that

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the State learned of this fact before the trial and had an obligation to inform Phillips because the evidence was exculpatory and would support Phillips' theory of defense that a member of Piper's group had a gun at the confrontation. Phillips also contended that Cox's testimony showed that Jensen, who had testified for the State, was lying when Jensen testified that he had removed his gun from the console of his vehicle and did not have a gun at the confrontation and that the State knew Jensen was lying when it presented his testimony. Phillips asserted he was denied effective cross-examination of Jensen because he did not know that Cox would testify that, ...

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