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State v. Green

Supreme Court of Nebraska

January 17, 2014

State of Nebraska, appellee,
Jamey R. Green, appellant.

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Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge.


Dennis R. Keefe, Lancaster County Public Defender, and Christopher Eickholt, for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust, for appellee.

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


1. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a statute is a question of law, regarding which the Supreme Court is obligated to reach a conclusion independent of the determination reached by the trial court.

2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

3. Jury Instructions. Whether jury instructions given by a trial court are correct is a question of law.

4. 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 disturb its ruling unless the court abused its discretion.

5. Constitutional Law: Statutes. In a challenge to the overbreadth and vagueness of a law, a court's first task is to analyze overbreadth.

6. Constitutional Law: Statutes. An attack on the overbreadth of a statute asserts that language in the statute impermissibly infringes on a constitutionally protected right.

7. Constitutional Law: Statutes. A statute may be unconstitutionally overbroad only if its overbreadth is substantial, that is, when the statute would be unconstitutional in a substantial portion of the situations to which it is applicable.

8. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

9. Constitutional Law: Statutes: Legislature: Notice. The more important aspect of the void-for-vagueness doctrine is not actual notice, but the requirement that a legislature establish minimal guidelines to govern law enforcement.

10. Constitutional Law: Statutes: Standing. To have standing to assert a claim of vagueness, a defendant must not have engaged in conduct which is clearly prohibited by the questioned statute and cannot maintain that the statute is vague when applied to the conduct of others.

11. Constitutional Law: Statutes: Standing. A court will not examine the vagueness of the law as it might apply to the conduct of persons not before the court.

12. Constitutional Law: Statutes: Standing. The test for standing to assert a vagueness challenge is the same whether the challenge asserted is facial or as applied.

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13. Appeal and Error. In order to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

14. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures.

[287 Neb. 213] 15. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.

16. Warrantless Searches: Search and Seizure: Probation and Parole. The U.S. Supreme Court has recognized that there is an exception to the warrant requirement for searches and seizures when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirements impracticable. A probation setting is an example of such a special need.

17. Constitutional Law: Warrantless Searches: Probation and Parole. Conditions in probation orders requiring the probationer to submit to warrantless searches, to the extent they contribute to the rehabilitation process and are done in a reasonable manner, are valid and constitutional.

18. Search and Seizure: Probation and Parole: Police Officers and Sheriffs. Law enforcement may conduct probation searches of probationers so long as law enforcement is acting under the direction of a probation officer.

19. Entrapment: Jury Instructions. When a defendant raises the defense of entrapment, the trial court must determine, as a matter of law, whether the defendant has presented sufficient evidence to warrant a jury instruction on entrapment.

20. Constitutional Law: Criminal Law: Entrapment: Words and Phrases. The entrapment defense is not of constitutional dimension. In Nebraska, entrapment is an affirmative defense consisting of two elements: (1) the government induced the defendant to commit the offense charged and (2) the defendant's predisposition to commit the criminal act was such that the defendant was not otherwise ready and willing to commit the offense.

21. Entrapment: Evidence: Proof. The burden of going forward with evidence of government inducement is on the defendant. In assessing whether the defendant has satisfied this burden, the initial duty of the court is to determine whether there is sufficient evidence that the government has induced the defendant to commit a crime. The court makes this determination as a matter of law, and the defendant's evidence of inducement need be only more than a scintilla to satisfy his or her initial burden.

22. Criminal Law: Entrapment: Estoppel. The defense of entrapment by estoppel consists of four elements: (1) the defendant acted in good faith before taking any action; (2) an authorized government official, acting with actual or apparent authority and who had been made aware of all relevant historical facts, affirmatively told the defendant that his or her conduct was legal; (3) the defendant actually relied on the statements of the government official; and (4) such reliance was reasonable.

23. Entrapment: Estoppel: Proof. The same burdens apply for the defense of entrapment by estoppel as do for traditional estoppel.

24. Entrapment: Intent. Nebraska has adopted the " origin of intent" test for entrapment: If the intent to commit the

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crime charged originated with the government rather than the defendant, the defendant was entrapped.

25. Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the [287 Neb. 214] prosecutor's remarks were improper. It is then necessary to determine the extent to which the improper remarks had a prejudicial effect on the defendant's right to a fair trial.

26. 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.

27. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.

28. Criminal Law: Trial: Prosecuting Attorneys: Juries. It is highly improper and generally prejudicial for a prosecuting attorney in a criminal case to declare to the jury his or her personal belief in the guilt of the defendant, unless such belief is given as a deduction from evidence.

29. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.

30. Plea in Abatement: Appeal and Error. Any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt ...

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