1. Pleadings. Issues
regarding the grant or denial of a plea in bar are questions
Evidence: Appeal and Error. On a question of
law, an appellate court reaches a conclusion independent of
the court below.
Double Jeopardy. The Double Jeopardy Clauses
of both the federal and Nebraska Constitutions protect
against three distinct abuses: (1) a second prosecution for
the same offense after acquittal, (2) a second prosecution
for the same offense after conviction, and (3) multiple
punishments for the same offense.
Constitutional Law: Motions for Mistrial.
When the defendant objects to the declaration of a mistrial,
the defendant's right to have a trial completed by a
particular tribunal will be subordinated to the public's
interest in fair trials ending in just judgments, when there
was a manifest necessity for the mistrial.
Double Jeopardy: Motions for Mistrial: Prosecuting
Attorneys. When a mistrial is declared at the
defendant's request or with the defendant's consent,
reprosecution is barred only when the prosecution's
conduct was intended to provoke the defendant into moving for
or consenting to the mistrial.
Double Jeopardy: Motions for Mistrial: Appeal and
Error. When a mistrial is declared, the important
consideration for purposes of the Double Jeopardy Clause is
that the defendant retains primary control over the course to
be followed in the event of an error.
Motions for Mistrial. When a mistrial is
declared, it is fair to expect the defendant to participate
in preserving his or her right to have the trial completed by
a particular tribunal.
8. __ .
When a court suggests a mistrial, if silence were not
construed as consent, attorneys could lull the court into
taking actions that could not later be undone.
Neb. 318] 9. Double Jeopardy: Motions for
Mistrial. Requiring the defendant to make an
affirmative choice concerning a mistrial avoids transforming
the protection against double jeopardy into an abusive weapon
used by a defendant to avoid prosecution.
Motions for Mistrial. It is not too onerous
to require defense counsel to clearly state whether he or she
objects to the court's consideration of a mistrial.
Double Jeopardy: Motions for Mistrial: Prosecuting
Attorneys. Where a mistrial is under sua sponte
consideration by the court and the defendant is given the
opportunity to object, but fails to timely and explicitly do
so, that defendant will be held to have impliedly consented
to the mistrial, and double jeopardy will not bar a retrial
unless the defendant demonstrates such consent was procured
through the prosecutorial conduct intended to provoke the
defendant into moving for or consenting to a mistrial.
Judgments: Records: Appeal and Error. Where
the record adequately demonstrates that the decision of a
trial court is correct-although such correctness is based on
a ground or reason different from that assigned by the trial
court-an appellate court will affirm.
Constitutional Law: Motions for Mistrial:
Records. Whether the defendant consented to a
mistrial involves the application of a constitutional
principle to historic facts that are reflected in the record.
from the District Court for Colfax County: Mary C. Gilbride,
Christopher J. Roth, of Forney Roth, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.,
and Riedmann, Judge, and Martinez, District Judge.
Martinez, District Judge.
defendant appeals from the denial of his plea in bar,
alleging that retrial following a mistrial would violate
prohibitions against double jeopardy The mistrial was declared by
the trial court following the court's determination that
[300 Neb. 319] defense counsel's questioning of the
witness, a minor child and hereinafter referred to as
"E.Z.," was improper and that the prejudice could
not be remedied by a curative jury instruction. Defense
counsel did not explicitly object to a mistrial when given
the opportunity to do so, but apologized for the improper
questioning and, at the court's request, presented case
law wherein curative instructions were held to be sufficient
to remedy improper references at trial to inadmissible
evidence. At issue is whether the defendant implicitly
consented to the mistrial and, if not, whether there was a
manifest necessity for a mistrial.
Leon-Simaj, also known as Antonio Leon-Batz, was charged with
one count of first degree sexual assault and two counts of
possession of child pornography stemming from his
relationship with E.Z. E.Z. was 14 years old at the time of
trial and 13 years old at the time of the events in question.
are no pretrial motions in the record. Trial began with the
testimony of E.Z., who testified that she and Leon-Simaj
engaged in sexual intercourse on approximately 10 different
was questioned about exhibits containing text messages
between Leon-Simaj and E.Z. She confirmed that several text
messages sent to Leon-Simaj contained pictures of her breasts
testified that at one point, she thought she might be
pregnant. She read out loud text messages in which she asked
Leon-Simaj to buy her a pregnancy test and in which
Leon-Simaj said he would do so if she sent him a picture of
herself without her underwear on. She did, and Leon-Simaj
purchased a pregnancy test for her. E.Z. was not pregnant.
E.Z.'s father discovered the relationship between E.Z.
and Leon-Simaj, the matter was reported to law enforcement
and E.Z. was taken to a hospital, where she was [300 Neb.
320] interviewed. During cross-examination, E.Z. admitted
that she deleted all social media messages from Leon-Simaj
the day before being interviewed. She also admitted that she
had lied at the hospital by telling the interviewer that she
had not called Leon-Simaj. E.Z. admitted, further, that she
had falsely told the interviewer that she did not have
Leon-Simaj's telephone number.
initially denied that she lied to the interviewer when she
had said she was no longer texting Leon-Simaj. But when
confronted with text messages, E.Z. admitted she had lied to
the interviewer and had, in effect, just lied to the jury.
counsel elicited testimony from E.Z. in which she described
how she had told Leon-Simaj she was pregnant, even though she
knew at that point that she was not. E.Z. read for the jury
text messages in which she told Leon-Simaj that her pregnancy
"hurt" and that she no longer wished to see
Leon-Simaj or for him to have a relationship with the baby.
In other text messages, E.Z. made reference to
Leon-Simaj's having a wife and told Leon-Simaj it was his
fault "[m]y baby will not be with his daddy . . .
counsel pointed out that a total of 10 text messages referred
to a baby that E.Z. knew did not exist. E.Z. admitted that,
thus, she had lied 10 times.
point, defense counsel moved on to E.Z.'s possible past
criminal behavior. Defense counsel asked E.Z., "Now . .
. you've been arrested before; correct?" E.Z.
answered, "Yes." Defense counsel immediately asked,
"For breaking into people's yards and stealing
and Declaration of Mistrial
prosecution objected to this line of questioning as involving
improper character evidence.
counsel initially responded that he wished to make an offer
of proof. Outside the presence of the jury, the court
expressed its opinion that the line of questioning was
improper and asked defense counsel for further explanation as
to what [300 Neb. 321] defense counsel's offer of proof
was and why it should come in. Defense counsel withdrew the
short recess to confer with the guardian ad litem, the
prosecutor asked for a curative instruction. But when further
pressed by the district court whether the prosecutor thought
a curative instruction was "enough," it was at that
point she responded, "No."
court thereafter asked the prosecutor what the other option
would be. The prosecutor responded that the other option
would be to call for a mistrial.
court asked defense counsel for his argument. Defense counsel
conceded that it was improper to ask E.Z. if she had been
arrested. Defense counsel apologized and explained that he
had thought it was proper under Neb. Rev. Stat. § 27-608
(Reissue 2016) to elicit testimony as to specific instances
prosecutor pointed out that she had prosecuted E.Z. in the
case that defense counsel was referencing and stated, "I
can personally tell you no one was robbed, no one was stolen
from, with regard to that. That is an absolute fabrication,
the facts of that case, and I know it personally."
court directed the parties to research whether an instruction
could cure the error, granting them a short recess to do so.
the recess, the prosecutor presented case law and argued that
it would be appropriate for the court to call for a mistrial.
The prosecutor also stated, "There is a mechanism if ...