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.
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.
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.
Trial: Prosecuting Attorneys. Whether prosecutorial
misconduct is prejudicial depends largely on the context of
the trial as a whole.
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.
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.
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.
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,
D. Nigro, Lancaster County Public Defender, Christopher
Eickholt, and Nathan J. Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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.
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 ...