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State v. Hernandez

Supreme Court of Nebraska

May 11, 2018

State of Nebraska, appellee,
Desiderio C. Hernandez, appellant.

         1. 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.

         2. 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 that discretion.

         3. 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.

         4. 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.

         5. 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.

         6. 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.

         [299 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 circumstances.

         8. ___: ___. 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.

         10. 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.

         11. ___: ___. 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.

         12. ___: ___. Statements prefaced by equivocal words like "I think, " "maybe, " or "I believe" generally do not constitute a clear, unambiguous, and unequivocal invocation.

         13. 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.

         14. 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.

         15. 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.

         16. 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.

         17. 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.

         18. 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.

         19. ___: ___. 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.

         20. 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.

         21. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial depends largely upon the context of the trial as a whole.

         22. 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 conviction.

          Appeal from the District Court for Richardson County: Daniel E. Bryan, Jr., Judge, Retired. Affirmed.

          Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant.

          Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

          Heavican, C.J., Cassel, Stacy, and Funke, JJ., and Colborn and Samson, District Judges.

          Samson, District Judge.


         A 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.

         The 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 interview.

         Finally, 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.


         Desiderio "Desi" C. Hernandez was charged with first degree murder (a Class I or IA felony), [1] use of a firearm to commit a felony (a Class IC felony), [2] and possession of a firearm by a prohibited person (a Class ID felony).[3] 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.

         1. The Brownell House

         Debella 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.

         Evidence 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 methamphetamine.

         2. August 4, 2015

         Hall 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.'"

         A few 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.

         After 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.

         McPherson 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.

         Hernandez' 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 walked away.

         Ogden 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.

         After Hernandez left, the sister-in-law called Ogden back and said she was coming to get her so they could go to the Brownell house together.

         When 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.

         Ogden 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.

         3. August 5, 2015

         Police 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.

         Kirkendall 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 futon bed.

         Debella 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.

         At 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.

         Hernandez 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 down.

         Hernandez 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.

         Seager 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.

         At 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 inside.

         Hernandez was ordered to come out of the house, but he stayed inside. The officers did not enter the house.

         4. August 6, 2015

         After 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 arrest.

         After 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 6, 2015.

         5. Interview With Investigators

         At 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.

         At the 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.

         Townsend 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?"

         Hernandez 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 truth."

         Townsend 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 subjects.

         Townsend 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."

         Townsend 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 tell him.

         Hernandez 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 should.
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 fucking [inaudible].
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 "Desi."
Hernandez: That's why I'm slowly putting all this shit on my body.

         Hernandez 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."

         [299 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.

         Hernandez 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.

         Townsend then told Hernandez that Hernandez' perspective of what happened mattered. Hernandez interjected, "Yeah, I'm catching everything you are saying."

         Townsend 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."

         Townsend 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.

         Townsend 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."

         At some 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."

         Townsend 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 ...

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