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State v. Burries

Supreme Court of Nebraska

August 4, 2017

State of Nebraska, appellee,
Anthony L. Burries, appellant.

         1. Appeal and Error. An appellate court independently decides questions of law presented on appeal.

         2. 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.

         3. 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 admissibility.

         4. 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 discretion.

         5. ___:___. 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.

         6. 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.

         7. 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.

         8. 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.

         9. Rules of Evidence: Hearsay. Hearsay is not admissible except as provided by the Nebraska Evidence Rules.

         10. 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.

         11. 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.

         12. 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 performance.

         13. 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.

         14. 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.

         15. 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.

         [297 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 admissions.

         17. 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.

         18. 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.

         19. 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.

         20. Effectiveness of Counsel. A defense counsel is not ineffective for failing to raise an argument that has no merit.

         21. 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.

         22. 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.

         23. 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.

         24. 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.

         25. 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.

         [297 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.

         27. ___: ___: ___ . 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.

         28. 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 proceeding.

         29. 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.

         30. 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 hearing.

         31. 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.

         32. 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.

         33. ___:___. 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.

         34. ___: ___ . 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.

         [297 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.

         36. 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.

         37. 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.

         38. ___:___:___. 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.

         39. 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.

         40. 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.

         41. 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.

         [297 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.

         43. ___:___. 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.

         44. 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.

         45. 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.

         46. 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.

         47. 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.

         48. ___: ___. 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.

         49. 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 event.

         50. 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.

         51. 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.

         52. Pretrial Procedure: Evidence: Juries. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury.

         53. 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.

         54. 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 doubt.

         55. 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.

         56. 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.

         Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed.

          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.

          FUNKE, J.

         I. NATURE OF CASE

         A jury 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.


         1. Evidence of Crime

         Hoult 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.

         The 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.

         An 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 death.

         Steffanie 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.

         Howard 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 Hoult's.

         At 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.

         On 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 bed.

         On 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 Thursday morning.

         Around 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.

         About 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.

         At 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.

         Howard 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.

         When 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.

         When 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.

         Burries 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.

         As 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.

         Between 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.

         After 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.

         One of 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.

         Burries 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 left.

         Sunday 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.

         Also on 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.

         On the 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.

         2. Burries' Statements to Police Investigators

         A 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[1] 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.

         3. Pretrial Proceedings

         Before trial, the State filed notice that it intended to present evidence under Neb. Evid. R. 404.[2] 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.

         For the 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.

         Regarding 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 crime.''

         In 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.

         After 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.

         4. State's Evidence at Trial of Burries' Other Bad Acts

         Despite 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."

         One of 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.

         Brian 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.

         Another 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.

         Terry 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."

         On 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."

         As 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."

         Beck 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.

         Howard 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.

         5. DNA Evidence

         At 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.[3] 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.

         Burries' 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 ...

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