Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Mitchell

Supreme Court of Nebraska

September 23, 2016

State of Nebraska, appellee,
v.
Travis T. Mitchell, appellant.

         1. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial will not be disturbed on appeal in the absence of an abuse of discretion.

         2. 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 that 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.

         3. Trial: Testimony: Constitutional Law: Arrests: Impeachment. A defendant waives his or her Fifth Amendment protections when the defendant takes the stand and testifies which, in turn, allows his or her prearrest silence to be used for impeachment.

         4. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial as a whole.

         5. Trial: Prosecuting Attorneys: Appeal and Error. In determining whether a prosecutor's improper conduct prejudiced the defendant's right to a fair trial, an appellate court considers the following factors: (1) the degree to which the prosecutor's conduct or remarks tended to mislead or unduly influence the jury; (2) whether the conduct or remarks were extensive or isolated; (3) whether defense counsel invited the remarks; (4) whether the court provided a curative instruction; and (5) the strength of the evidence supporting the conviction.

         6. Trial: Prosecuting Attorneys. When a prosecutor's comments rest on reasonably drawn inferences from the evidence, he or she is permitted to present a spirited summation that a defense theory is illogical or unsupported by the evidence and to highlight the relative believability of witnesses for the State and the defense.

         [294 Neb. 833] 7. Motions for Mistrial: Motions to Strike: Proof: Appeal and Error. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material.

         Petition for further review from the Court of Appeals. Moore, Chief Judge, and Irwin and Inbody, Judges, on appeal thereto from the District Court for Lancaster County, John A. Colborn, Judge.

          Joseph D. Nigro, Lancaster County Public Defender, Christopher Eickholt, and Nathan J. Sohriakoff for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Kelch, J.

         INTRODUCTION

         Travis T. Mitchell was convicted of driving under the influence (DUI), fourth offense, with refusal to submit to a chemical test, and for driving during revocation. The Nebraska Court of Appeals affirmed, see State v. Mitchell, 23 Neb.App. 657, 876 N.W.2d 1 (2016), and we granted Mitchell's petition for further review. Mitchell argues that the district court erred in overruling his motion for mistrial based on the prosecutor's comments to the jury during closing arguments concerning Mitchell's postarrest, pre-Miranda silence. We affirm the judgment of the Court of Appeals that affirmed Mitchell's convictions and sentences.

         BACKGROUND

         On June 6, 2014, after a vehicular pursuit in Lincoln, Nebraska, police apprehended Mitchell in front of his residence. The State charged Mitchell with DUI with refusal to submit to a chemical test and with driving during revocation, [294 Neb. 834] and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.