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
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
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.
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.
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.
Neb. 136] 6. Juries: Discrimination: Prosecuting
Attorneys. Whether a prosecutor's reasons for
using a peremptory challenge are race neutral is a question
___: ___. 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.
___: ___. 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.
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.
___: ___: ___. 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.
Confessions. A suspect need not utter a
talismanic phrase to invoke his or her right to silence.
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
from the District Court for Douglas County: Gregory M.
Schatz, Judge. Affirmed.
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
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
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. He further asserts that his statements to
law enforcement should have been suppressed as obtained in
violation of Miranda v. Arizona,  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.
Dire and Clifton's Batson Challenge
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
Juror No. 13
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.
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."
Juror No. 8
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.
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.
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.
Neb. 139] (c) Juror No. 14
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.
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
Batson Challenge Denied
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
Clifton's Statements and Motion to Suppress
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.
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
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.
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.
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?"
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.
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."
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."
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."
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
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
Other Evidence at Trial
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.
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.
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.
Sanders' Neighbors' Testimony
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."
Neb. 143] (c) Absalom 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.
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.
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.
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
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
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
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
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 ...