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State v. Clifton

Supreme Court of Nebraska

March 24, 2017

State of Nebraska, appellee,
Jaquez B. Clifton, appellant.

         1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), 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. Whether those facts meet constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court's determination.

         2. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error. An appellate court reviews de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law. It reviews for clear error a trial court's factual determination regarding whether a prosecutor's race-neutral explanation is persuasive and whether the prosecutor's use of a peremptory challenge was purposefully discriminatory.

         3. Motions for Mistrial: Appeal and Error. An appellate court will not disturb a trial court's decision whether to grant a motion for mistrial unless the court has abused its discretion.

         4. Juries: Prosecuting Attorneys. A prosecutor is ordinarily entitled to exercise permitted peremptory challenges for any reason at all, if that reason is related to his or her view concerning the outcome of the case.

         5. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining whether a prosecutor impermissibly struck a prospective juror based on race is a three-step process. In this three-step process, the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

         [296 Neb. 136] 6. Juries: Discrimination: Prosecuting Attorneys. Whether a prosecutor's reasons for using a peremptory challenge are race neutral is a question of law.

         7. ___: ___: ___. In determining whether a prosecutor's explanation for using a peremptory challenge is race neutral, a court is not required to reject the explanation because it is not persuasive, or even plausible; it is sufficient if the reason is not inherently discriminatory.

         8. ___: ___: ___. A prosecutor's intuitive assumptions, inarticulable factors, or even hunches can be proper bases for rejecting a potential juror, so long as the reasons are not based on impermissible group bias.

         9. Confessions: Miranda Rights: Police Officers and Sheriffs. Before the police are under a duty to cease an interrogation, the suspect's invocation of the right to cut off questioning must be unambiguous, unequivocal, or clear.

         10. ___: ___: ___. To invoke the right to cut off questioning, the suspect must articulate his or her desire with sufficient clarity such that a reasonable police officer under the circumstances would understand the statement as an invocation of the Miranda right to remain silent.

         11. Confessions. A suspect need not utter a talismanic phrase to invoke his or her right to silence.

         12. Trial: Evidence: Due Process. The purpose of the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure the disclosure of evidence of such significance that, if suppressed, would deprive the defendant of a fair trial.

         Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge. Affirmed.

          Thomas C. Riley, Douglas County Public Defender, Cindy A. Tate, and Mikki C. Jerabek, for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

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

          Wright, J.

         I. NATURE OF CASE

         Jaquez B. Clifton appeals his convictions for first degree murder and use of a firearm to commit a felony in relation to [296 Neb. 137] the death of Frank Sanders on July 20, 2014. Clifton asserts that the prosecution impermissibly struck prospective jurors on the basis of race and that he should be accorded a new trial under Batson v. Kentucky.[1] He further asserts that his statements to law enforcement should have been suppressed as obtained in violation of Miranda v. Arizona, [2] because the Miranda warning was not given until after the interrogation had begun and because he asserted his right to cut off questioning by saying, "I can't." Lastly, Clifton asserts that the court should have granted a mistrial. He claims the court allowed witness testimony concerning events that the witness had not revealed in prior statements to the police and which were allegedly revealed to the prosecution before trial, but had not been disclosed to the defense as required by Brady v. Maryland.[3]


         1. Voir Dire and Clifton's Batson Challenge

         At the close of jury selection, defense counsel raised a Batson challenge. Although the race or heritage of the venire was not stipulated or otherwise formally put into evidence, defense counsel pointed out during argument before the district court that three of the four African-American jurors in the venire pool were struck by the State's peremptory challenges: prospective jurors Nos. 8, 13, and 14. The prosecution proffered nondiscriminatory reasons for the strikes.

         (a) Juror No. 13

         Juror No. 13 was the prosecution's third strike. The prosecutor explained that he did not believe juror No. 13 could be "ultimately independent" and disregard her past experience [296 Neb. 138] with drug addiction and alcoholism, including drug transactions that were similar to those that occurred as part of the charges against Clifton.

         During voir dire, juror No. 13 stated that she worked full time both as a program specialist with the elderly and as a cook. In her work at an adult daycare, she worked with people with mental health issues. She taught them qualitative living skills. Her second job was a cook for a homeless shelter and the "Hero program." In the late 1980's, she took a class in business law, with the thought of pursuing a career as a legal secretary. She found that legal coursework was not for her. Juror No. 13 was recovering from 25 years of alcoholism and 23 years of crack addiction. She had been sober for 6 years and agreed that many crimes are "fueled by the addiction."

         (b) Juror No. 8

         Juror No. 8 was the State's seventh strike. The prosecution was concerned about her experience with the juvenile court and as a therapist who might have sympathy for young offenders like Clifton. The prosecutor noted that juror No. 8 would be aware of the possible penalties at issue in the trial and might resist the punishment demanded by statute, believing that Clifton should be reformed instead.

         Juror No. 8 was a mental health therapist, and in that capacity, she was in juvenile court "quite often." She worked with the county attorney's office and the public defender's office in her advocacy of the juveniles or their families. She was subpoenaed "quite often, " and she often has to call police officers when she has an unruly or noncompliant child.

         Juror No. 8 was friends with two other members of the venire, jurors Nos. 3 and 14. Juror No. 3 ultimately was on the jury panel. With regard to juror No. 3, juror No. 8 said that they "disagree all the time." She knew one of the potential witnesses, whom she described as a friend of her ex-husband and a former coworker.

         [296 Neb. 139] (c) Juror No. 14

         Juror No. 14 was the prosecution's last strike. The prosecutor explained that he preferred the two other remaining jurors in the venire to juror No. 14, because juror No. 14 did not appear to be forthcoming in volunteering information. Based on a comparison of the answers of juror No. 14 to the answers of the other two remaining jurors, and the fact that the other two remaining jurors appeared younger, the prosecutor had the impression that "if [the other two remaining jurors] were to hear the votes of other people, they wouldn't raise a big ruckus or problem and they would kind of go along to get along." Juror No. 14 worked in sales and was originally from Chicago, Illinois.

         Defense counsel generally asserted that Caucasian jurors that were selected had "answers [that] were no more damaging than . . . any of the other potential jurors that were in the pool."

         (d) Batson Challenge Denied

         The district court found that Clifton had made a prima facie showing that the prosecutor had exercised peremptory challenges on the basis of race, but found that Clifton had failed to sustain his burden to show that the State's proffered reasons for striking the jurors were a pretext for racial discrimination. Accordingly, the court denied the challenge.

         2. Clifton's Statements and Motion to Suppress

         Before trial, Clifton moved to suppress all of his statements to law enforcement. Clifton was questioned in custody for approximately 2½ hours. Det. Ryan Davis began the questioning with introductions. At this point, Clifton had not been given Miranda warnings.

         Clifton spelled his name and gave his address and telephone number. Davis and Clifton discussed Clifton's job status and education. Davis asked Clifton if he knew why he was being questioned. Clifton stated that he did not. Davis explained [296 Neb. 140] that he was doing some followup regarding an incident that occurred on "Sunday, " giving the general location of Sanders' residence. Davis asked Clifton if he had any idea what he was talking about. Clifton said he did not, and stated that his mother had passed away some 3 weeks prior and that he was on probation. Further discussion ensued about Davis' probation status and his mother's passing away. When Clifton mentioned he had a son "on the way, " Davis inquired about the due date.

         Davis proceeded to question Clifton in more detail about his education. When Clifton explained that he did not finish 12th grade because he was "running from different places" and was in the foster care system, Davis asked Clifton further questions about that history. During this time, Clifton did not make any statements regarding the night of July 20, 2014.

         After about 5 minutes, Davis read Clifton his Miranda rights. After reading Clifton his Miranda rights, Davis began asking Clifton questions directly related to the events of July 20, 2014. At first, Clifton denied having left his house that evening. After further questioning, Clifton acknowledged that he was at the address in question on the night in question, but denied pulling the trigger. Clifton said "[s]ome dude . . . wanted to buy some weed"; Clifton claimed he did not know the names of the people he was with and had never seen them before.

         Davis asked Clifton to walk him through what happened that night-to tell Clifton's side of the story. Clifton responded that he wanted to talk to his son. Davis stated that he could not facilitate that "right at that second" and continued, "we've come to a point where you've admitted being there, and so I would think you would want to go the one step further and explain what happened so I don't have to listen to everybody else's version of it. Doesn't that make sense?"

         Clifton responded, "It do, but I can't tell you." Davis asked why, and Clifton said, "I can't, I just can't." Davis asked, "Did you guys go there to rob him?" Clifton said he did not. Clifton [296 Neb. 141] continued to answer a few more questions about the night in question, and then admitted that "[t]hey" went to Sanders' residence to rob him.

         When Davis asked Clifton to tell him who "they" were, Clifton said, "I can't because I don't want anybody telling on me." Davis stated that it was Clifton's future and that it was his opportunity to walk him through this. Clifton responded, "I can't." Davis responded, "Yes, you can." Davis encouraged Clifton to at least tell him who he was with on the night of the shooting. Clifton exclaimed, "Ugh, " and when asked if he had wanted "that man to die, " Clifton said, "I didn't want that man to die."

         Davis explained there was no reason for Clifton to cover for anybody. Clifton stated that while at Sanders' residence, he was told to hold the door open. Clifton said he was holding the front door while another person went to a back room to buy marijuana. He then heard a gunshot and "ran all the way back home."

         Clifton continued to refuse to name the other parties. He stated that he was "ready to go, man. I wanna go talk to my kids." When Davis stated that he understood and that they were almost done, Clifton responded, "I ain't got nothing to say, man. I got nothing else to say." After some back and forth, Davis' continued attempts to get Clifton to reveal who was with him the night of the murder, Clifton said he was "ready to leave now" and "I wanna be done." When Davis pressed Clifton again to tell him who was with him, Clifton said he could not talk anymore and stated, "I'm done talking about it. We did enough talking."

         The court found through the statements, beginning with "I ain't got nothing to say, man. I got nothing else to say, " Clifton had invoked his right to remain silent. It found that any statements following these invocations were inadmissible.

         At trial, the jury heard Clifton's admission that he had gone to Sanders' house with two other unknown individuals on the night in question. The jury heard Clifton's statements that he [296 Neb. 142] was holding the door when he heard a gunshot and he "didn't want that man to die."

         3. Other Evidence at Trial

         In addition to Clifton's statements to law enforcement made before the point in which the court found he had invoked his right to cut off questioning, the prosecution presented the testimony of Rico Larry; Absalom Scott; Jacklyn Harris, Sanders' live-in girlfriend; neighbors; law enforcement; and forensic experts.

         (a) Jacklyn Harris

         Harris lived with Sanders on the main floor of a house which was converted to four separate apartments. She testified that she had hosted a barbeque the afternoon and into the evening of July 20, 2014. Around 10:30 p.m., all the guests had left, and about 11 p.m., she was in the kitchen when Scott knocked on a screen door. She recognized Scott through the glass on the screen door as one of Sanders' regular customers and yelled to Sanders that Scott was there to see him.

         Scott and "another guy" entered and walked past her to a back bedroom where Sanders was located. A few seconds later, she heard a gunshot. Immediately thereafter, Scott and another man came running past her and out the front door. Harris testified that Sanders then staggered into the kitchen, where he quickly bled to death. Harris could not find the cell phone she shared with Sanders. She went to her neighbor's apartment for help.

         (b) Sanders' Neighbors' Testimony

         Sanders' upstairs neighbor testified that he heard running and looked out his window and saw two men fleeing between two houses. Soon thereafter, Harris knocked on his door, saying that Sanders had been shot and asking to use the telephone. Sanders' downstairs neighbor described that late on July 20, 2014, he heard a scuffling noise, then a momentary quiet, followed by a "boom."

         [296 Neb. 143] (c) Absalom Scott

         Scott testified that he, Larry, and Clifton went to Sanders' residence on the night of July 20, 2014. Scott stated he and Sanders bought and sold, or traded, drugs to one another. Scott provided crack cocaine, and Sanders provided marijuana. Usually Scott would "just show up, " normally accompanied by Larry, and the transactions usually took place in the kitchen or the living room. The transactions did not normally take place in the back bedroom, which was accessed through the kitchen.

         On the night of July 20, 2014, Scott and Larry took Clifton to Sanders' residence because Clifton wanted to buy some marijuana. According to Scott, at some point in the evening prior to going to Sanders' house, Clifton had stated that he wanted to rob somebody. Scott testified that he thought Clifton was just "[t]alking crazy" and that he "didn't pay no mind to it." Scott knew that the police were watching Sanders' house, because Scott had participated in several "controlled buys" for the police around that time. As a result, they parked in the alley. Scott testified that Harris opened the door of her residence after they knocked and that they all entered.

         Sanders was lying on the couch. Harris went to the kitchen. Scott said that he and Larry sat on the couch with Sanders, while Clifton stood by the front door. Scott informed Sanders that Clifton wished to purchase a pound of marijuana, and upon Sanders' request, Clifton pulled out his purchase money and counted it in front of Sanders. Scott saw Clifton count out approximately $2, 500.

         Sanders went to the back room, and about 15 seconds later, Scott saw Clifton follow him. Ten seconds after that, Sanders called to Scott to "'[c]ome here.'" Scott got as far as the hallway to the back room, where he found Clifton pointing a gun at Sanders. Scott observed Sanders standing with his hands at his sides, and he heard Sanders ask Clifton, "'What are you doing?'" Scott testified that it did not appear that Sanders had a weapon. Approximately 3 seconds after entering the hallway, [296 Neb. 144] Clifton shot Sanders. Scott saw Sanders fall forward on top of Clifton. Scott said he took off running. Larry and Clifton followed shortly thereafter, and the three drove away.

         Scott testified that while they were driving away, Clifton told them that Sanders had reached for Clifton's gun. Scott said that Clifton also threatened him that if he told anyone about the shooting, Clifton would kill Scott and Scott's girlfriend.

         The prosecutor asked Scott if he had any contact with Clifton in the days after the shooting and before Scott's arrest. Scott stated the day following the shooting, he had a conversation with Clifton. This testimony led to defense counsel's making a Brady objection that will be described in more detail under the subheading entitled "Alleged Brady Violation." The Brady objection was overruled, and Scott proceeded to testify that the day after the shooting, Clifton told Scott that he and Larry had nothing to worry about because Clifton "did it."

         On cross-examination, Scott admitted that on July 20, 2014, he deleted several pictures from his cell phone that depicted him holding a 9-mm semiautomatic weapon. Scott testified that, as a convicted felon, he was not supposed to possess a firearm. He claimed the weapon was not his. Scott admitted that he originally lied to law enforcement about the events in question, stating that two strangers had followed him into the house and shot Sanders while Scott was sitting on the couch.

         (d) Rico Larry

         Larry testified he went with Scott and Clifton to Sanders' house the evening of July 20, 2014, to buy some marijuana. He and Scott had visited Sanders many times before for the same purpose. Harris let them into Sanders' residence. Larry stated that he and Scott sat down on the couch next to Harris, while Clifton remained standing. Larry and Scott told Clifton they each wished to buy "a ten bag." Clifton said he wanted to [296 Neb. 145] buy an ounce. Sanders said something ...

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