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.
Evidence: Appeal and Error. A trial court
has the discretion to determine the relevancy and
admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of
Motions for Mistrial: Appeal and Error.
Whether to grant a motion for mistrial is within the trial
court's discretion, and an appellate court will not
disturb its ruling unless the court abused its discretion.
Criminal Law: Motions for Mistrial: Appeal and
Error. A mistrial is properly granted in a criminal
case where an event occurs during the course of a trial which
is of such a nature that its damaging effect cannot be
removed by proper admonition or instruction to the jury and
thus prevents a fair trial.
Constitutional Law: Witnesses:
Self-Incrimination. The 5th Amendment to the U.S.
Constitution-applicable to state governments by incorporation
through the 14th Amendment-protects against compelled
self-incrimination by providing that no person shall be
compelled in any criminal case to be a witness against
himself or herself.
Motions to Suppress: Self-Incrimination:
Proof. To overcome a motion to suppress, the
prosecution has the burden to prove by a preponderance of the
evidence that incriminating statements by the accused were
voluntarily given and not the product of coercion.
Neb. 897] 7. Confessions: Police
Officers and Sheriffs. In determining whether an
accused's statement was given freely and voluntarily,
courts examine police conduct in light of the totality of the
___. Coercive police activity is a necessary predicate to a
finding that a confession is not voluntary. 9.
Miranda Rights: Waiver: Words and Phrases.
To be a valid waiver of Miranda rights, the waiver
must be knowing and voluntary. A waiver is knowing if it is
made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to
abandon it. A waiver is voluntary if it is the product of a
free and deliberate choice rather than through intimidation,
coercion, or deception.
Miranda Rights: Waiver. An express waiver of
a suspect's Miranda rights is not required to be
made in writing; an oral waiver is sufficient.
___: ___. Where the prosecution shows that a Miranda
warning was given and that it was understood by the accused,
an accused's uncoerced statement establishes an implied
waiver of the right to remain silent.
___: ___. Statements prefaced by equivocal words like "I
think, " "maybe, " or "I believe"
generally do not constitute a clear, unambiguous, and
Evidence: Words and Phrases. To be relevant,
evidence must be probative and material. Evidence is
probative if it has any tendency to make the existence of a
fact more or less probable than it would be without the
evidence. A fact is material if it is of consequence to the
determination of the case.
Rules of Evidence: Words and Phrases. In the
context of Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2016), unfair prejudice means an undue tendency to
suggest a decision based on an improper basis.
Convictions: Other Acts: Appeal and Error.
When considering whether evidence of other acts is unfairly
prejudicial, an appellate court considers whether the
evidence tends to make conviction of the defendant more
probable for an incorrect reason.
Trial: Prosecuting Attorneys: Words and
Phrases. Generally, pros-ecutorial misconduct
encompasses conduct that violates legal or ethical standards
for various contexts because the conduct will or may
undermine a defendant's right to a fair trial.
Trial: Prosecuting Attorneys: Due Process.
Prosecutorial misconduct prejudices a defendant's right
to a fair trial when the misconduct so infects the trial that
the resulting conviction violates due process.
Trial: Prosecuting Attorneys. Prosecutors
generally may not give their personal opinions on the
veracity of a witness or the guilt or innocence of the
accused. The principle behind this rule is that the
prosecutor's opinion carries with it the imprimatur of
the government and may [299 Neb. 898] induce the jury to
trust the government's judgement rather than its own view
of the evidence.
___: ___. When a prosecutor's comments rest on reasonably
drawn inferences from the evidence, the prosecutor is
permitted to present a spirited summation that a defense
theory is illogical or unsupported by the evidence and to
highlight the relative believability of witnesses for the
State and the defense.
Juries: Prosecuting Attorneys. Prosecutors
should not make statements or elicit testimony intended to
focus the jury's attention on the qualities and personal
attributes of the victim.
Trial: Prosecuting Attorneys. Whether
prosecutorial misconduct is prejudicial depends largely upon
the context of the trial as a whole.
Trial: Prosecuting Attorneys: Appeal and
Error. In determining whether a prosecutor's
improper conduct prejudiced the defendant's right to a
fair trial, an appellate court considers the following
factors: (1) the degree to which the prosecutor's conduct
or remarks tended to mislead or unduly influence the jury,
(2) whether the conduct or remarks were extensive or
isolated, (3) whether defense counsel invited the remarks,
(4) whether the court provided a curative instruction, and
(5) whether the strength of the evidence supporting the
from the District Court for Richardson County: Daniel E.
Bryan, Jr., Judge, Retired. Affirmed.
W. Kortus, of Nebraska Commission on Public Advocacy, for
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Heavican, C.J., Cassel, Stacy, and Funke, JJ., and Colborn
and Samson, District Judges.
Samson, District Judge.
confession may not be used in a criminal prosecution if it
was obtained through police coercion rather than voluntarily
made. The appellant, who was convicted of first degree
murder, argues that his confession was not voluntary, because
he was still under the influence of the methamphetamine he
[299 Neb. 899] smoked the day before. Because we find no
police coercion, we conclude it was voluntary.
appellant also claims that prior to his confession, he did
not voluntarily waive his right to remain silent, but instead
invoked that right during his interview with law enforcement.
After a review of the evidence, we conclude that the
appellant understood his rights, yet still agreed to speak
with law enforcement. We also find that the appellant's
statement that he would "probably stop talking" was
not an unequivocal invocation of the right to remain silent.
We also conclude that the district court did not abuse its
discretion by not redacting some of the statements in the
we conclude that the prosecuting attorney made several
inappropriate comments during his closing arguments. However,
the district court did not abuse its discretion by not
declaring a mistrial, in part because of the strength of the
evidence supporting the convictions.
"Desi" C. Hernandez was charged with first degree
murder (a Class I or IA felony),  use of a firearm to commit a
felony (a Class IC felony),  and possession of a firearm by a
prohibited person (a Class ID felony). All of these
charges were made in connection with the death of his cousin,
loseph "loey" A. Debella, Ir. A 5-day jury trial
was held. The following evidence was adduced.
moved to Falls City, Nebraska, in the summer of 2015. Shortly
thereafter, Debella began staying at lason Brownell's
house (the Brownell house). Several other individuals also
stayed there or visited frequently, including lohn Hall,
Brett Winters, David McPherson, Jeff Morley, and [299 Neb.
900] Hernandez. Debella lived in the basement. All other
residents, including Hernandez, slept upstairs.
suggested that methamphetamine was sold in the house on a
daily basis and that everyone in the house was involved in
drug sales, including Hernandez and Debella. One house
resident testified that Debella was the primary dealer of
August 4, 2015
and McPherson testified to the events leading up to the
discovery that Debella had been shot. On the evening of
August 4, 2015, Hall and McPherson were smoking
methamphetamine in Hall's bedroom in the Brownell house
when they heard what sounded like a gunshot. According to
McPherson, he said to Hall, '"was that a gunshot I
just heard?'" to which Hall replied,
'"Yeah. They're probably shooting that gun in
the basement, again.'"
minutes later, Hernandez opened the door to Hall's
bedroom and asked if they wanted to go to the basement to
smoke. Hall accepted the invitation, but shortly afterward,
Hernandez left out the front door.
Hernandez left, Hall yelled downstairs to Debella. Debella
did not answer. Hall then heard "fast" breathing
and went downstairs to discover Debella lying on the floor
and shaking, with blood coming out of his head and blood on
the floor. Hall yelled to McPherson that Debella had been
shot and told McPherson to call the 911 emergency dispatch
service. McPherson testified that he did not call 911,
because it was not his house and he did not want to get
involved. Instead, McPherson went to Brownell's workplace
to tell Brownell about Debella.
and Hall testified that they did not hear anyone entering or
leaving the house from the time they arrived to the time
Hernandez left. Winters arrived at the house around the time
that McPherson was leaving.
sister, Esperanza Ogden, also testified as to her
recollections of that night. She testified that Hernandez
came [299 Neb. 901] to her house at approximately 11:40 p.m.
Hernandez gave Ogden a cigarette and said, '"That
will probably be the last cigarette I ever give
you.'" Hernandez then told Ogden he had shot Debella
and indicated he had shot him in the forehead. Hernandez then
then called her and Hernandez' brother and sister-in-law,
who also lived in Falls City, to tell them what Hernandez had
said. Minutes later, Hernandez arrived at their house. When
he arrived, the brother and sister-in-law were on the front
porch. From the sidewalk, Hernandez said, '"I shot
that motherfucker.'" The brother asked why, and
Hernandez replied, '"His bitch shouldn't have
been late.'" Hernandez also said, '"I told
you guys I wasn't fucking around.'" According to
the sister-in-law, as Hernandez was walking away, he
sarcastically said, '"Somebody should probably call
911. It's been at least ten minutes now.'" The
sister-in-law testified that during the time Hernandez was at
their house (about a minute), Hernandez was "hopping
around" and could not keep still from adrenaline.
Hernandez left, the sister-in-law called Ogden back and said
she was coming to get her so they could go to the Brownell
Ogden and the sister-in law arrived at the Brownell house,
the front door was locked. As they were knocking, McPherson
arrived and yelled to Hall to open the door. Soon after, Hall
and Winters opened the door, and McPherson left.
and the sister-in-law entered the house, and they could hear
Debella's labored breathing and moaning. Ogden described
Debella's breathing as a "death hurl" or
"death gurgle." Ogden then went into the basement
and found Debella lying face down, with blood around his
head. She told the sister-in-law to call 911.
August 5, 2015
responded shortly after the call. At approximately 12:15 a.m.
on August 5, 2015, a Falls City Police Department officer,
Jonathan Kirkendall, and another officer arrived at the [299
Neb. 902] scene. Hall told the officers that Debella was
downstairs. When Kirkendall arrived at Debella's side,
Debella was still breathing laboriously, but when Kirkendall
attempted to communicate with him, Debella did not respond.
testified that he did not see any signs of struggle in the
basement. The officers found some .22-caliber ammunition in
the basement and a revolver handgun under some blankets on a
was taken by ambulance to a local hospital and then
transported by helicopter to a hospital in Lincoln, Nebraska,
where he was stabilized and placed in an intensive care unit.
He was kept alive with a life support system. About a week
later, Debella's mother decided to remove him from life
support, after which he died.
around 10 a.m. on August 5, 2015, Hernandez went to Michael
Seager's house in Falls City. Seager was an acquaintance
of Hernandez, whom Hernandez had gotten into an altercation
with and had not been in contact with for 6 to 8 months.
told Seager he had nowhere to go and asked if Seager wanted
to "hang out" and smoke methamphetamine. Seager
agreed, and the two spent the day together smoking multiple
times. At some time during the day, Hernandez asked Seager if
he could stay in his house and pay rent. Seager turned him
then called his cousin, Tiffany Gates, who lived in Horton,
Kansas, which is approximately 35 minutes outside of Falls
City. Hernandez told Gates that he needed a place to stay. At
the time Hernandez called, Gates already knew Hernandez was
wanted in connection with the shooting of Debella and told
Hernandez that he could come stay with her. Gates then got
her children out of the house and arranged for someone to
call the police when she sent a text message indicating that
Hernandez had arrived.
drove Hernandez to Gates' house. When they arrived, Gates
sent the text message. Gates testified that she asked
Hernandez what happened and that he chuckled and said,
'"I [299 Neb. 903] got that motherfucker right
there.'" Seager testified that he overheard
Hernandez say to Gates, '"He was breathing when I
got there. He wasn't when I left, '" and he saw
Hernandez make a gesture like a gun pointed at his forehead.
However, Gates testified that Hernandez told her Debella was
still breathing when he left.
about 7 p.m. on August 5, 2015, Horton police approached the
Gates' residence. Hernandez immediately said to Gates,
"'I'm not here'" and ran into the
house. Gates told one of the officers that Hernandez was
was ordered to come out of the house, but he stayed inside.
The officers did not enter the house.
August 6, 2015
an 8-hour standoff, which included a "SWAT team, "
Hernandez was taken into custody at approximately 3 a.m. on
August 6, 2015. A Taser was deployed on Hernandez during his
being briefly treated at a local hospital for a small
laceration on his head and for a Taser prong stuck in his
chest, Hernandez was medically cleared, turned over to the
police, and transported to jail at around 3:30 a.m. on August
Interview With Investigators
around 2:30 p.m. on August 6, 2015, Hernandez was interviewed
by two Nebraska State Patrol investigators, Cory Townsend and
Nicholas Frederick, in an interview room at the Brown County
sheriff's office in Hiawatha, Kansas.
beginning of the video-recorded interview, Townsend
introduced himself and Frederick and told Hernandez that they
were from the Nebraska State Patrol. Hernandez asked
Townsend, "Why am I in Kansas, and you guys are
questioning me in another state?" Townsend explained
that they can question people in other states, but do not
have authority to make arrests there.
told Hernandez that they had an idea about what happened
between him and "Joey." Hernandez said, [299 Neb.
904] "Joey who?" Townsend said, "Joey
[Debella, ] your cousin." Hernandez said, "What
about my cousin?" Townsend said, "Tell me your
name, please." Hernandez said, "My name is Desi.
You just got my name from in there, didn't you?"
then launched into a long discussion of his family and
various topics. After a while, Townsend told Hernandez again
that he wanted to talk to him about Debella and that he
needed Hernandez' cooperation to get his side of the
story. Hernandez said, "There's nothing I can tell
you guys that can help me any more than if I tell you the
told Hernandez that he needed to make sure Hernandez knew
what his rights were. Hernandez responded, "I don't
even know what my rights are." As Townsend tried to
proceed with reading Hernandez his rights, Hernandez
interjected and started talking about various off-topic
tried to bring Hernandez back on topic and read from a
Miranda rights advisory form. He read, "Before
asking you any questions about the shooting of Joseph Anthony
Debella Jr., I must advise you and you must understand each
of the following, " and he read the Miranda
rights. He then said, "Now [Hernandez], did you
understand those?" Hernandez said, "Yeah, I'm
still focusing on the shooting." Townsend said, "Do
you want me to explain or to repeat any of that?"
Hernandez shook his head "no."
then read the bottom of the form, which stated that Hernandez
had been advised of his rights and was willing to answer
questions. He told Hernandez that there are two sides to
every story and that Townsend wanted to get Hernandez'
side of the story. Pointing to the line on the rights
advisory form that read "the shooting of Joseph Anthony
Debella, Jr., " Hernandez said, "That right there
is . . . somebody's mistake somewhere." He said he
heard that "something happened at that house, " but
that no one told him what happened. He then asked Townsend to
started talking about his family and other topics. Townsend
tried to bring Hernandez' attention back to the advisory
form. The following colloquy occurred:
[299 Neb. 905] Townsend: Because of my job as a police
officer, I live by a lot of rules. And I have expectations.
And I live by upholding the rights of individuals. Ok?
Hernandez: And because of my job as a civilian I live by a
lot of rules. I respect them a lot more than I probably
Townsend: And that's what makes socie ....
Hernandez: I get disrespected more than I probably should.
But that's nor [sic] here nor there.
Townsend: To talk to you about this, [Hernandez], I'd
like for you to know that you understand this and to agree to
talk to me. Is that something you can do?
Hernandez: I can try.
Townsend: Ok, would you be willing to sign here?
Hernandez: I guess. Well, what do I sign, my name? You
[inaudible] my name.
Townsend: Is this your name right here?
Hernandez: [Inaudible] I was around in things that happened
in the '70s, supposedly. Everybody swears I wasn't
there. Do you know what I mean? I've got cousins upon
cousins telling me, "You couldn't have been
there." You know what I'm saying? "That
didn't happen." Well, I know that happened. I was
there. I was there when this happening [sic] in Grandma's
front yard. I was there when Grandpa kept bringing all this
Hernandez: [Pointing at the rights advisory form and stating,
] I just want to know if this is my name or not.
Townsend: Well, I believe that's what your name to be. I
mean you've got a tattoo there on your forearm that says
Hernandez: That's why I'm slowly putting all this
shit on my body.
then complained that he was shocked with a Taser and began
discussing other topics like his family and childhood. He
then said, 'You guys probably don't even know where
this is coming from. I'm just fed the fuck up. I'm
fed up with lies."
Neb. 906] At many times during the interview, Hernandez would
change the topic or talk about things that were not
responsive to the question he was asked. He spoke multiple
times at length about his family, wondering whether various
family members were actually his family members.
also made multiple odd or nonsensical statements, such as
statements about people having two stomachs like cows and
about defecating being similar to having a child.
then told Hernandez that Hernandez' perspective of what
happened mattered. Hernandez interjected, "Yeah, I'm
catching everything you are saying."
asked Hernandez why he shot Debella, and Hernandez denied
shooting him. Townsend told Hernandez that other people had
told him that Hernandez shot Debella. Hernandez said,
"Well as far as things go, anything I say can
incriminate me and put me in prison."
told Hernandez that Hall told him what had happened.
Hernandez then claimed he was in the basement "smoking
dope" with Debella and went upstairs to ask Hall and
McPherson if they wanted to smoke dope. Hernandez did not
want to wait on Hall, so he left. Hernandez claimed he did
not hear any gunshot.
told Hernandez that what makes people interested in a case is
"the why" behind what happened and that people want
to know what Debella did to offend Hernandez. Hernandez said,
"What did he do to offend me? Well, there's a number
of things." Townsend asked him if he was upset that
Debella was not cutting him in on his profits. Hernandez
said, "It's not about the profits, it's about
respect." Later in the interview, Hernandez said,
"Never once. [Debella's] never showed me respect
from the very first time I ever met him." Townsend
asked, "Is that why you got upset and shot him?"
Hernandez said, "No, no, no. And I didn't shoot him.
Thanks for that addition, though."
time during the interview, Hernandez said, "I think
I'll probably stop talking now." Townsend said,
"What's that?" Hernandez repeated, "I
think I'll probably stop talking [299 Neb. 907]
now." Townsend said "ok, " paused, and then
started talking about the importance of getting
Hernandez' side of the story. Townsend then told
Hernandez that he is a unique person. Hernandez replied:
And I'm very intelligent. I know what I'm doing. All
this shit right here. [Circling the rights advisory form in
pen and stating, ] I don't run around trying to do all
this shit because I think I'm a badass or a hardass or I
can prove something. I do all this because I know all this
shit that happens [pointing at rights advisory form with a
pen in hand] in the court of law. All this shit happens for a
reason, which is good. And some of it I love too much, you
know what I'm saying, as far as reading people's
cases, this and that, and the other. I can go and tell you
where the judge, the prosecutor, and your lawyer fucked you.
... I can tell you who can be judges and who can be lawyers
and who can be prosecutors. Townsend also asked Hernandez
about the gun. Hernandez said, "That was [Debella's]
revolver. That revolver don't belong to me."
Townsend asked Hernandez how, if the gun belonged to Debella,
Hernandez ended up using it. He replied, "Let's just
say because [Debella's] careless."
again talked about the importance of honesty and asked
Hernandez whether his story was going to change once DNA
testing results were received. Townsend stressed that no
matter what Hernandez had done, he could still have his
integrity and honesty and not be a ...