Appeal and Error. An appellate court
independently decides questions of law presented on appeal.
Constitutional Law: Self-Incrimination: Appeal and
Error. Whether a defendant voluntarily made a
statement while in custody and whether a defendant
unambiguously invoked his or her right to remain silent or to
have counsel present are mixed questions of law and fact. An
appellate court reviews a trial court's finding of
historical facts for clear error and independently determines
whether those facts satisfy the constitutional standards.
Rules of Evidence. In proceedings where the
Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by such rules; judicial discretion is involved
only when the rules make discretion a factor in determining
Rules of Evidence: Appeal and Error. Where
the Nebraska Evidence Rules commit the evidentiary question
at issue to the discretion of the trial court, an appellate
court reviews the admissibility of evidence for an abuse of
___:___. An appellate court reviews for abuse of discretion a
trial court's evidentiary rulings on relevance, whether
the probative value of evidence is substantially outweighed
by the danger of unfair prejudice, and the sufficiency of a
party's foundation for admitting evidence.
Rules of Evidence: Other Acts. An appellate
court reviews for abuse of discretion a trial court's
evidentiary rulings on the admissibility of a defendant's
other crimes or bad acts under Neb. Evid. R. 404(2), Neb.
Rev. Stat. § 27-404(2) (Reissue 2016), or under the
inextricably intertwined exception to the rule.
Judgments: Words and Phrases. An abuse of
discretion occurs when a trial court's decision is based
upon reasons that are untenable or [297 Neb. 368]
unreasonable or if its action is clearly against justice or
conscience, reason, and evidence.
Rules of Evidence: Appeal and Error. When
judicial discretion is not a factor, whether the underlying
facts satisfy the legal rules governing the admissibility of
a proponent's evidence is a question of law, subject to
de novo review.
Rules of Evidence: Hearsay. Hearsay is not
admissible except as provided by the Nebraska Evidence Rules.
Rules of Evidence: Hearsay: Appeal and
Error. Apart from rulings under the residual hearsay
exception, an appellate court reviews for clear error the
factual findings underpinning a trial court's hearsay
ruling and reviews de novo the court's ultimate
determination to admit evidence over a hearsay objection or
exclude evidence on hearsay grounds.
Effectiveness of Counsel: Constitutional Law:
Statutes: Records: Appeal and Error. Whether a claim
of ineffective assistance of trial counsel can be determined
on direct appeal presents a question of law, which turns upon
the sufficiency of the record to address the claim without an
evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
Effectiveness of Counsel: Appeal and Error.
An appellate court determines as a matter of law whether the
record conclusively shows that (1) a defense counsel's
performance was deficient or (2) a defendant was or was not
prejudiced by a defense counsel's alleged deficient
Constitutional Law: Miranda Rights. The
warnings required by Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are an absolute
prerequisite to interrogation and fundamental with respect to
the Fifth Amendment privilege.
Miranda Rights: Waiver: Proof. If a
defendant seeks suppression of a statement because of an
alleged violation of Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the State must
prove that the defendant validly waived his or her
Miranda rights by a preponderance of the evidence.
Miranda Rights: Waiver: Appeal and Error. An
appellate court looks to the totality of the circumstances to
determine whether a defendant validly waived his or her
rights under Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966). A valid waiver must be
made knowingly and voluntarily, in the sense that it was the
product of a free and deliberate choice and made with a full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it. Factors to be
considered include the suspect's age, education,
intelligence, prior contact with authorities, and conduct.
Neb. 369] 16. Miranda Rights: Police
Officers and Sheriffs. Law enforcement officers are
not required to rewarn suspects from time to time of their
rights under Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Miranda rule
and its requirements are met if a suspect receives adequate
Miranda warnings, understands them, and has an
opportunity to invoke the rights before giving any answers or
Miranda Rights. The precise advisement
language set out in Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is not mandatory.
Right to Counsel: Waiver. The key inquiry in
determining whether a defendant waived his or her right to
counsel during an interrogation is whether the defendant was
made sufficiently aware of his or her right to have counsel
present during the questioning, and of the possible
consequences of a decision to forgo the aid of counsel.
Self-Incrimination: Right to Counsel: Waiver:
Proof. Although an express written or oral statement
of waiver of the right to remain silent or the right to
counsel is usually strong proof of the validity of the
waiver, it is not dispositive.
Effectiveness of Counsel. A defense counsel
is not ineffective for failing to raise an argument that has
Effectiveness of Counsel: Proof: Appeal and
Error. To prevail on a claim of ineffective
assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the defendant must show that his or her counsel's
performance was deficient and that this deficient performance
actually prejudiced the defendant's defense. An appellate
court may address the two prongs of this test, deficient
performance and prejudice, in either order.
Effectiveness of Counsel: Proof. To show
prejudice under Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant
must demonstrate a reasonable probability that but for
counsel's deficient performance, the result of the
proceeding would have been different.
DNA Testing: Evidence. The relevance of DNA
evidence depends on its tendency to include or exclude an
individual as the source of a biological sample.
Expert Witnesses. A court should exclude an
expert's opinion when it gives rise to two conflicting
inferences of equal probability, so the choice between them
is a matter of conjecture.
Rules of Evidence: Expert Witnesses: DNA
Testing. A DNA expert's testimony that there may
have been a minor contributor's DNA in a biological
sample is irrelevant evidence because it is not probative of
the source of the DNA.
Neb. 370] 26. Trial: DNA Testing: Evidence.
A DNA expert's inconclusive results that a defendant
cannot be excluded as a minor contributor to a biological
sample allows the jury to speculate that the defendant might
have been the minor contributor when the expert fails to
provide any statistical relevance for the detected alleles in
relationship to the defendant's DNA profile.
___: ___: ___ . The value of inconclusive DNA testing results
is substantially outweighed by the danger that the evidence
will mislead the jurors absent statistical evidence that will
help them to assess whether a defendant is or is not the
source of DNA found in a biological sample.
Postconviction: Effectiveness of Counsel: Appeal and
Error. When a defendant's appellate counsel is
not the defendant's trial counsel, the defendant must
raise on direct appeal any claim that the trial counsel
provided ineffective assistance, if the issue is known to the
defendant or apparent from the record, in order to avoid a
procedural bar to raising the claim later in a postconviction
Effectiveness of Counsel: Proof: Appeal and
Error. An appellant must make specific allegations
of the conduct that he or she claims constitutes deficient
performance by a trial counsel when raising an ineffective
assistance claim on direct appeal.
Trial: Effectiveness of Counsel: Records: Appeal and
Error. The fact that an ineffective assistance of
counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the
question. An ineffective assistance of counsel claim will not
be addressed on direct appeal if it requires an evidentiary
Effectiveness of Counsel: Records: Appeal and
Error. An appellate court will address a claim on
direct appeal that a defendant's trial counsel was
ineffective only if the record is sufficient to adequately
review the question.
Rules of Evidence: Other Acts. The list of
permissible purposes under Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Reissue 2016), is not exhaustive.
___:___. Neb. Evid. R. 404(2), Neb. Rev.
Stat. § 27-404(2) (Reissue 2016), does not apply to
evidence of a defendant's other crimes or bad acts if the
evidence is inextricably intertwined with the charged crime.
___: ___ . Inextricably intertwined evidence includes
evidence that forms part of the factual setting of the crime,
or evidence that is so blended or connected to the charged
crime that proof of the charged crime will necessarily
require proof of the other crimes or bad acts, or if the
other crimes or bad acts are necessary for the prosecution to
present a coherent picture of the charged crime.
Neb. 371] 35. Homicide: Rules of
Evidence: Other Acts: Time. Evidence of a murder
defendant's previous threat to the victim or statement to
others showing a desire to harm or kill the victim are facts
that are inextricably intertwined with the charged murder if
the defendant made the threat or statement fairly close in
time to the murder.
Criminal Law: Witnesses. A defendant's
attempted intimidation or intimidation of a State's
witness is evidence of the defendant's conscious guilt
that a crime has been committed and serves as a basis for an
inference that the defendant is guilty of the crime charged.
Rules of Evidence: Other Acts: Proof.
Pursuant to Neb. Evid. R. 404(3), Neb. Rev. Stat. §
27-404(3) (Reissue 2016), before the prosecution can offer
evidence of a criminal defendant's extrinsic acts under
rule 404(2), it must first prove to the trial court, by clear
and convincing evidence and outside the jury's presence,
that the defendant committed the act.
___:___:___. Upon objection to evidence offered under Neb.
Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue
2016), the proponent must state on the record the specific
purpose or purposes for which the evidence is being offered,
and the trial court must similarly state the purpose or
purposes for which it is receiving the evidence. A trial
court must then consider whether the evidence is
independently relevant, which means that its relevance does
not depend upon its tendency to show propensity.
Rules of Evidence: Other Acts. Evidence
offered under Neb. Evid. R. 404(2), Neb. Rev. Stat. §
27-404(2) (Reissue 2016), is subject to the overriding
protection of Neb. Evid. R. 403, Neb. Rev. Stat. §
27-403 (Reissue 2016), which requires a trial court to
consider whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice.
Trial: Rules of Evidence: Other Acts:
Juries. When requested, the trial court must
instruct the jury on the specific purpose or purposes for
which it is admitting the extrinsic acts evidence under Neb.
Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue
2016), to focus the jurors' attention on that purpose and
ensure that it does not consider it for an improper purpose.
Trial: Rules of Evidence: Other Acts: Appeal and
Error. A proponent's clear explanation for
evidence offered under Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Reissue 2016), ensures that a trial court
has an opportunity to examine the evidence for its
independent relevance and the potential for unfair prejudice.
The requirement that the trial court state on the record the
purpose or purposes for which such evidence is received is
primarily to ensure that an appellate court can review the
trial court's ruling.
Neb. 372] 42. Rules of Evidence: Proof. Neb.
Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 2016),
requires authentication or identification of evidence
sufficient to support a finding that a matter is what the
proponent claims as a condition precedent for admission.
___:___. Authentication or identification under Neb. Evid. R.
901, Neb. Rev. Stat. § 27-901 (Reissue 2016), is not a
high hurdle. A proponent is not required to conclusively
prove the genuineness of the evidence or to rule out all
possibilities inconsistent with authenticity. If the evidence
is sufficient to support a finding that the evidence is what
it purports to be, the rule is satisfied.
Circumstantial Evidence. The identity of a
participant in a telephone conversation may be established by
circumstantial evidence such as the circumstances preceding
or following the telephone conversation.
Hearsay: Words and Phrases. Hearsay is a
statement, other than one made by the declarant while
testifying at the trial or hearing, offered to prove the
truth of the matter asserted.
Hearsay. A declarant's out-of-court
statement offered for the truth of the matter asserted is
inadmissible unless it falls within a definitional exclusion
or statutory exception.
Rules of Evidence: Hearsay. The hearsay
exception under Neb. Evid. R. 803(1), Neb. Rev. Stat. §
27-803(1) (Reissue 2016), for a "statement relating to a
startling event or condition made while the declarant was
under the stress of excitement caused by the event or
condition, " comprises excited utterances.
___: ___. Excited utterances are an exception to the hearsay
rule, because the spontaneity of excited utterances reduces
the risk of inaccuracies inasmuch as the statements are not
the result of a declarant's conscious effort to make
them. The justification for the excited utterance exception
is that circumstances may produce a condition of excitement
which temporarily stills the capacity for reflection and
produces utterances free of conscious fabrication.
Rules of Evidence: Hearsay: Proof. For a
statement to be an excited utterance, the following criteria
must be met: (1) There must be a startling event, (2) the
statement must relate to the event, and (3) the declarant
must have made the statement while under the stress of the
Rules of Evidence: Hearsay: Time. An excited
utterance may be subsequent to the startling event if there
was not time for the exciting influence to lose its sway. The
true test for an excited utterance is not when the
exclamation was made, but whether, under all the
circumstances, the declarant was still speaking under the
stress of nervous excitement and shock caused by the event.
Rules of Evidence: Hearsay: Police Officers and
Sheriffs. The period in which the excited utterance
exception applies depends on the facts [297 Neb. 373] of the
case. Relevant facts include the declarant's physical
conditions or manifestation of stress and whether the
declarant spoke in response to questioning. But a
declarant's response to questioning, other than
questioning from a law enforcement officer, may still be an
excited utterance if the context shows that the declarant
made the statement without conscious reflection.
Pretrial Procedure: Evidence: Juries. A
motion in limine is a procedural step to prevent prejudicial
evidence from reaching the jury.
Trial: Pretrial Procedure: Evidence: Appeal and
Error. When a motion in limine to exclude evidence
is overruled, to preserve error for appeal, the movant must
renew the objection when the particular evidence which was
sought to be excluded by the motion is offered during trial.
Criminal Law: Juries: Evidence: Appeal and
Error. In a jury trial of a criminal case, an
erroneous evidentiary ruling results in prejudice to a
defendant unless the error was harmless beyond a reasonable
Verdicts: Juries: Appeal and Error. Harmless
error review looks to the basis on which the jury actually
rested its verdict. The inquiry is not whether in a trial
that occurred without the error, a guilty verdict would
surely have been rendered, but whether the actual guilty
verdict rendered was surely unattributable to the error.
Trial: Evidence. The erroneous admission of
evidence is generally harmless error and does not require
reversal if the evidence is cumulative and other relevant
evidence, properly admitted, supports the finding by the
trier of fact.
from the District Court for Douglas County: J Russell Derr,
Michael J. Wilson and Glenn Shapiro, of Schaefer Shapiro.
L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
found the appellant, Anthony L. Burries, guilty of
premeditated first degree murder for killing his girlfriend,
Tina [297 Neb. 374] Hoult. The court sentenced him to life
imprisonment. This is Burries' direct appeal.
Evidence of Crime
lived alone in a southwest Omaha apartment. After she failed
to report for her scheduled work shifts on Friday and
Saturday, May 16 and 17, 2014, her employer contacted law
enforcement. On Sunday morning, May 18, police officers went
to her apartment to check on her. A neighbor identified
Hoult's car in the parking lot and told the officers that
he had not seen Hoult in about 2 days. When she did not
respond to knocks at her door, the maintenance manager
unlocked the deadbolt to her apartment for the officers. None
of the apartment doors had locks on the doorknobs. The
deadbolts could only be locked from the inside or by someone
using a key from the outside.
officers found Hoult's body slumped over in a chair with
multiple gashes in her skull. She was deceased. They saw
blood on the chair, splattered on the walls, and pooled on
the floor below her head. Her apartment had no signs of a
forced entry or a struggle. No weapons were found in the
apartment that could have inflicted Hoult's injuries.
autopsy revealed that Hoult died from at least nine blows to
her head from a heavy instrument with a sharp edge. She had
died at least several hours before she was found, but the
pathologist could not determine the time or date of her
Beck was a long-time friend of Hoult who testified that
Burries had been Hoult's boyfriend, on and off, for 11 to
12 years before her death. He was also romantically involved
with Harmony Howard, who was the mother of his son.
learned about Burries' relationship with Hoult when
Burries was arrested in December 2012 for assaulting Hoult.
After he was arrested for the assault, he called Howard to
tell her that her car, which he had borrowed, was in the
parking [297 Neb. 375] lot of Hoult's apartment complex.
One of Burries' roommates drove Howard there to get it.
As a result, Howard knew the location of the complex where
Hoult lived, but she did not know which apartment was
Burries' trial, the State submitted cell phone records
showing text messages that Hoult and Burries exchanged from
late Tuesday, May 13, 2014, until the early morning of
Friday, May 16. A little before midnight on Tuesday, Burries
began texting Hoult stating that he wanted to come to her
apartment. Hoult responded that he should stay where he was
and expressed dissatisfaction with their relationship.
Burries' texts expressed his frustration with Hoult. This
texting stopped at about 1:45 a.m. on Wednesday.
Wednesday evening, May 14, 2014, Howard drove Burries to a
bar close to Hoult's apartment where Hoult and other
residents at the apartment complex would often socialize.
When Burries returned after 10 to 15 minutes, Howard said he
seemed agitated and she drove him home. Late Wednesday night,
Burries began texting Hoult again. She responded that her
cell phone was not working properly and that she was going to
Thursday, May 15, 2014, beginning about 6 a.m., Burries
texted Hoult multiple times that he was coming over for sex.
Hoult repeatedly responded that she was not interested and to
leave her alone. He accused her of being with other men and
lying about being at work. She responded that she was tired
of him trying to control her and threatening her. She
specifically stated that he should not have threatened to
torture her or say that she "owe[d him] a limb."
She wrote that she did not feel safe around him. Burries
responded that she had caused his conduct by being
disrespectful: "[L]ook at everything you've been
doing lately just disrespect after another. All intentional
and you think i'm not going to be mad. . . . You caused
all of this and you ain't getting away with it. . . . You
lucky I haven't fucked you up fur all this shit."
When he said he could easily come to her apartment, she
responded that she did not want [297 Neb. 376] him to; she
wanted him to leave her alone. The text messages stopped
10:30 or 11 p.m. on Thursday, May 15, 2014, Burries called
Howard to borrow her car. She went and picked him up, and he
dropped her off at her house before going to a bar. She said
that he was wearing a striped shirt over a black tank top,
jeans, and white athletic shoes.
11:30 p.m. on Thursday, Hoult went to visit Adrian Hogan, who
was a resident at Hoult's apartment complex. Hogan said
that Hoult left his apartment about 1:30 a.m. on Friday.
about 3:20 a.m. on Friday, May 16, 2014, Burries texted Hoult
that he needed to see her and that he knew she was home. At
3:25 a.m., he sent another text message that if her cell
phone was not working, he would just show up. Hoult opened
these messages but did not respond.
came to Burries' house about 3:30 a.m. on Friday. When
she arrived, Burries approached her car in his driveway and
told Howard to take him to the intersection that was close to
Hoult's apartment complex. Howard said she was frightened
by a look Burries gets in his eyes: "[I]t's like a
blank look. It's almost like looking in the eyes of the
devil." She drove him to the requested intersection.
they got to the intersection, Burries told Howard that he
needed to talk to Hoult. Howard drove to Hoult's
apartment complex, and Burries directed her to Hoult's
apartment. She waited in her car for 2 to 5 minutes while
Burries went inside. She estimated that she dropped Burries
off at Hoult's apartment between 3:30 to 4 a.m. Cell
phone records showed that at 3:34 a.m., Hoult received two
text messages from Burries and that she opened them. At 3:40
a.m., Hoult texted Burries that he should be sleeping. That
was the last text message she sent. Burries' cell phone
did not receive this message until 5:54 a.m.
Burries returned to Howard's car, he told her to
"'[d]rive, '" in an "[a]ngry,
firm" tone. Howard said that she [297 Neb. 377] was
afraid because he was yelling at her not to look at him and
not to pull up next to anyone. She did not see anything in
his hands, but she believed that the car's dome light was
off. She said that he had grabbed his cream-colored coat from
the back seat and laid the coat over his lap.
had Howard drive past his house and eventually told her to
stop in front of a randomly chosen house which was close to a
bridge in south Omaha. He was screaming at Howard that she
was the only person who knew that he was "there,
'' which she understood to mean at Hoult's
apartment, and that she would be an accessory if she told
anyone. Howard said that she was not concerned then about
what he might have done to Hoult, because she was afraid of
what he might do to her. He instructed her to drive across
the bridge. While they were crossing the bridge, he rolled
down the passenger window and threw something out. Howard did
not see what he threw out because he told her not to look at
him. Howard then dropped Burries off at his house. It was
almost 5 a.m. when Howard returned to her home.
stated, Burries' cell phone did not receive Hoult's
last text message until 5:54 a.m. on Friday. The testimony of
an investigator who performed digital forensics for the State
showed that if a person puts his or her cell phone into
airplane mode or turns it off, it will not receive a text
message during this period. The cell phone records showed
that approximately 4 minutes after receiving Hoult's last
text message, Burries responded. He asked why she had not
answered his messages. He said that he had done what she
asked and burned all the clothes that reminded her of
"that night" in the fireplace and that he wanted to
move on. He repeated that he wanted to come over and accused
her of playing games by ignoring his text messages. His
periodic text messages to Hoult continued until 9 p.m. on
Friday. None were opened.
4 and 5 a.m. on Friday, Burries also contacted Melissa
Eledge, whom he had been seeing and asked her to pick him up.
Eledge arrived at Burries' house before 6 a.m. [297 Neb.
378] She said that Burries was intoxicated and asked her to
take him to his brother's house. He was carrying a gray
or black bag. Eledge waited in the car while Burries went
inside his brother's house for 5 to 10 minutes. When he
returned, he asked Eledge to take him to a tire store. When
they arrived, Burries took the bag and went to a house next
to the tire store. He did not explain his actions to Eledge.
that stop, Eledge took Burries back to his house. During the
drive, Burries told Eledge that he was texting an old
girlfriend named "Tina Hoult." He told Eledge that
Hoult was mad at him for wearing the same clothes that he had
worn when he went to jail and that she wanted him to get rid
of them. When they arrived at Burries' home, Eledge
believed that she could smell something that had been burned
inside. After Eledge's memory was refreshed, she
testified that she had asked Burries about the smell and that
he had told her he had been '"burning stuff"
before she arrived.
Burries' roommates, Eric Paine, testified that on Friday
morning when he woke up, he saw embers from a fire in the
fireplace and noticed a heavy smoke smell in the house. Paine
said that Burries called him from Howard's house sometime
in the early afternoon on Saturday, May 17, 2014. Burries
asked him to buy him some items from a store. When Paine
arrived at Howard's house, Burries was cleaning a boat
with Howard's father and asked Paine to pick up two
bottles of ammonia for cleaning.
texted Eledge on Saturday between 1 and 2 p.m. to tell her
that he was going to Iowa. About 2:30 p.m., he arrived at the
house where Eledge was. He brought cleaning supplies and
carpet shampoo with him for cleaning out the car he was
driving. Unknown to Eledge, Burries had arrived in
Howard's car. He and Eledge cleaned Howard's car for
about an hour. About 3 to 4 p.m. on Sunday, May 18, 2014,
Burries told Eledge he was going fishing with friends and
evening, Howard called Burries to ask when he would be
returning her car. Burries told her that Hoult had [297 Neb.
379] been found "fucked up in her apartment" and
that he was going to call the detectives to "clear his
name." He returned her car a couple of minutes later.
Police officers arrived at Howard's house shortly
thereafter and seized the car.
Sunday evening, investigators arrived at
Burries:residence, but he was not home. Around
midnight, Burries called Paine while investigators were at
the house and asked to speak to a police officer. Burries
told the officer that he was getting an attorney and planned
to come in the next day. Officers noticed that the fireplace
had been cleaned out recently, and Paine told them that he
had not done it. Investigators searched a bag of ash they
found in the trash but did not find any clothing remnants.
morning of May 19, 2014, Burries came to Eledge's home.
While there, he told her that he needed to get out of town.
He seemed "frazzled, " and kept saying that
"[i]t was bad" and he needed to get out of town. He
told Eledge that he was going to St. Louis and asked if she
would at least take him to Kansas City. Shortly thereafter,
they left her house and traveled to "St. Joe."
During the trip, Burries had two cell phones with him and
would power them off when he was not using them.
Burries' Statements to Police Investigators
Missouri state trooper arrested Burries in Missouri at about
5 p.m. on Monday. Two Nebraska investigators traveled to
Missouri to interview him. After Det. Larry Cahill, with the
Omaha Police Department, advised Burries of his
Miranda rights, he asked if knowing these rights,
Burries was willing to talk to the officers. Burries said,
"Within limitations, I'll talk to you." During
the investigation, Burries stated that he and Hoult had hit
each other during their fights and [297 Neb. 380] admitted
that he had been incarcerated from December 2012 to November
2013. He admitted that Hoult had given him a key to her
apartment. He admitted to burning his clothes between 3 and 5
a.m. on Friday. He stated that at Hoult's request, he had
burned his jeans, a cream-colored jacket, and a black hoodie
in his fireplace. But when Cahill informed Burries that
investigators had learned from Howard that he was at
Hoult's apartment when she was murdered and that he had
told Howard not to talk about it, Burries cut off the
interview until he had an attorney.
trial, the State filed notice that it intended to present
evidence under Neb. Evid. R. 404. It also requested a pretrial
hearing to determine the voluntariness of Burries'
statements to investigators. Burries moved in limine to
exclude the evidence that the State wanted to present. He
argued it was inadmissible on grounds of foundation,
relevance, hearsay, or prejudice.
voluntariness portion of the hearing, the court admitted the
audio recording of the investigator's interview of
Burries in Missouri. The court later ruled in a written order
that the statement was admissible.
the State's rule 404 motion, the State argued that it
intended to prove Burries had assaulted Hoult in December
2012, had served a year of imprisonment for the crime, and
had harmed or threatened Hoult since 2012. For the hearing,
the court admitted a copy of the complaint, conviction, and
sentencing order for the 2012 assault, which evidence showed
Burries was convicted of assaulting Hoult and was sentenced
to 2 years' imprisonment. In addition to these documents,
the State intended to present the testimony of witnesses who
had seen Hoult after the 2012 assault. The State also
intended to call "a number of witnesses" to prove
"motive, opportunity, [297 Neb. 381] intent,
preparation, plan, knowledge, and identity." But it did
not specify the purpose for admitting any witness'
testimony, and it argued that its evidence "may not be
[rule] 404 evidence but rather really res gestae of the
support of its res gestae argument, the prosecutor stated
that Burries had told his roommate that the clothes he burned
on Friday morning were the clothes that still had blood on
them from the last time he assaulted Hoult. The State argued
that because of Burries' statement, the 2012 assault was
res gestae to the murder crime: "[A]rguably, the clothes
he was burning [were] either bloody clothes from the actual
event in this case or the previous assault." The State
also argued that the 2012 assault was inextricably
intertwined with the murder charge because very soon after
the murder, Burries had told Cahill that he had burned his
clothes. Additionally, the State intended to present the
testimony of witnesses who would say they had overheard
telephone conversations in which Burries had threatened Hoult
before her murder.
the hearing, the court issued an order in which it addressed
both the State's rule 404 motion and Burries' motion
in limine resisting the evidence. The court ultimately
accepted the State's argument that Burries' December
2012 assault of Hoult was inextricably intertwined with her
murder in May 2014:
[T]he events surrounding the December, 2012 incident,
including [Burries'] conviction, are admissible,
particularly because there is evidence of the burning of
clothes by [Burries] so close to the time of the murder of .
. . Hoult. The State will argue this was an act of [Burries]
to dispose of the evidence of . . . Hoult's murder even
though [Burries] argues that the clothes that were burned
were from the 2012 incident. The 2012 incident is an integral
part of the allegations against [Burries] in this case such
that the evidence may "complete the story or provide a
total picture of the charged crime[.]"
[297 Neb. 382] The court then set out the specific testimony
that it would allow from the State's witnesses. It
rejected Burries' relevance, hearsay, and foundation
challenges to the witnesses' testimonies.
State's Evidence at Trial of Burries' Other Bad Acts
the court's inextricably intertwined ruling, just before
the State presented evidence at trial, the court again heard
argument as to the State's evidence of Burries' other
bad acts. The court ruled that Burries' attorney could
have a standing objection to the rule 404 evidence that the
court ruled on in its pretrial order. The court rejected
Burries' request to give an instruction limiting the
jurors' consideration of the evidence to help them decide
whether he had a motive to murder Hoult. The court stated
that it was "just going to read [rule] 404(2), as to
evidence of other crimes, wrongs, et cetera." The State
agreed to this approach, arguing that all of its intended
evidence was relevant to prove "motive, opportunity,
intent, preparation, plan, knowledge, identity, or absen[ce
of] mistake or accident."
the court's approved witnesses was the apartment complex
maintenance manager. He stated that in 2010, Hoult moved into
apartment No. 19. He also testified that in December 2012,
Hoult asked him to come to her apartment, at which time he
saw that she had been beaten. Her eyes were blackened, and he
saw blood on her face, arms, and neck. The manager then
changed Hoult's lock, and later that month, she moved to
apartment No. 142. He said he changed her locks at least
three times before she moved to apartment No. 142. After the
manager's testimony, in the jury's presence, the
State submitted exhibit 1, which it described as a copy of
Burries' conviction and sentence for assaulting Hoult on
December 1, 2012.
Coburn was Hoult's neighbor when she lived in apartment
No. 142. He testified that when he first met Hoult [297 Neb.
383] in October 2012, she had obviously been beaten up
because her eyes were blackened and swollen. Coburn testified
that he knew Hoult had a boyfriend named "Tony."
About a month before Hoult's murder, Coburn was out by
the parking lot with Hoult when a car passed them. Hoult
identified the driver as "Tony, " and then received
a call from "Tony." She put the call on
"speaker, " and Coburn could hear Tony asking Hoult
where she was. Hoult said she was home, and Tony called her a
'"fucking liar'" and said, '"I
will find you, you cunt - you f'ing cunt.'"
Coburn said Hoult looked a little nervous but brushed it off.
Coburn said that on the Sunday before Hoult was murdered,
Hoult came to his apartment and asked him to check her
apartment because she thought "Tony" was inside.
witness testified that in 2014, he and his wife lived across
the hall from Hoult's apartment. He testified that when
Hoult was moving into apartment No. 142, he saw her in the
hall and she had a black eye. She told him that the black eye
was the reason she was moving.
Robinson also lived in Hoult's apartment complex and met
her in the summer of 2013. About the middle of April 2014, he
was with Hoult and other neighbors in the outside commons
area when her cell phone rang. She told Robinson that he
could answer it, and he saw the name "Tony" on her
cell phone. A male, whom Robinson believed to be Burries,
asked where Hoult was and said that "he did time once
for [Hoult] and he wasn't scared to do it again."
Monday, May 12, 2014, Robinson and three other people were
with Hoult in her apartment when her cell phone rang. She
told Robinson that the call was from "Tony, " and
Robinson could hear that the male caller was upset. Hoult
held the cell phone so he could listen. "Tony" said
that Hoult had '"better be [home] when [he] g[o]t
there'" and that he had come by the previous night
and she was not home. Robinson said Hoult "teared
up" during this call. He and Hoult's other guests
then went outside while she was talking. When Hoult joined
them, [297 Neb. 384] she told Robinson that "Tony"
had accused her of cheating and threatened to "beat her,
revive her, and repeat it."
stated, Steffanie Beck was Hoult's long-time friend and
had worked with Hoult for 4 years before the murder. Beck had
never met Burries, but she knew he was Hoult's boyfriend.
Beck said that she knew Burries' voice because he had
called Hoult many times from jail when Beck was present, and
Hoult would hold the cell phone so that Beck could hear him.
While Burries was incarcerated, Beck said she had heard him
accuse Hoult of cheating and threaten to "kill her, tear
her face off, cut her legs off."
also said that when Burries was going to be released, Hoult
was nervous and planned to leave the state and move in with
her mother. Beck testified that the last time she saw Hoult
was on Thursday afternoon, May 15, 2014, when Beck was
leaving work and Hoult was walking in from the parking lot.
Although it was a hot day, Hoult was wearing a long-sleeved
jacket. Beck thought Hoult was hiding something and convinced
Hoult to take the jacket off. Beck said that Hoult had
bruising on her arms from her elbows to her shoulders but
told Beck it was nothing.
testified that she had received a 4-page handwritten letter
from Burries a few days before giving her trial testimony.
After the court gave its rule 404(2) instruction, it allowed
the prosecutor to read the entire letter verbatim. In the
letter, Burries warned Howard that he would be getting out
shortly and not to "lie" at his trial. He
threatened retribution to anyone who interfered with his
ability to rear his children.
trial, Mellissa Helligso, a forensic DNA analyst, testified
for the State about her testing of a blood sample from
Hoult's arm. Helligso testified the testing showed that
the blood was from a single source and that Hoult could not
be excluded as the contributor, because every allele she
detected in Hoult's DNA profile matched the alleles that
she found in the blood [297 Neb. 385] sample. An allele is a
genetic variation in the sequencing of the DNA molecule at
one of the specific segments, or loci, with known individual
variations, which forensic analysts focus on to determine an
individual's DNA profile. The prosecutor also elicited
Helligso's testimony that the DNA testing had produced an
allele that could have been a common "artifact"
that the testing produces or it could have come from another
person, but that she could not compare a single allele to
another person's profile.
attorney did not object to the prosecutor's questions or
the expert's testimony. On cross-examination, he elicited
testimony that the allele could have come from someone else
and that ...