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State v. Leon-Simaj

Supreme Court of Nebraska

June 22, 2018

State of Nebraska, appellee,

          1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions of law.

         2. Evidence: Appeal and Error. On a question of law, an appellate court reaches a conclusion independent of the court below.

         3. 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.

         4. 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.

         5. 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.

         6. 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.

         7. 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.

          [300 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.

         10. 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.

         11. 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.

         12. 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.

         13. 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.

          Appeal from the District Court for Colfax County: Mary C. Gilbride, Judge. Affirmed.

          Christopher J. Roth, of Forney Roth, L.L.C., for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Riedmann, Judge, and Martinez, District Judge.

          Martinez, District Judge.


         The defendant appeals from the denial of his plea in bar, alleging that retrial following a mistrial would violate prohibitions against double jeopardy[1] 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.


         Antonio 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.

         E.Z.'s Testimony

         There 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 occasions.

         E.Z. 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 and vagina.

         E.Z. 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.

         After 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.

         E.Z. 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.

         Defense 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 . . . ."

         Defense 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.

         At that 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 bicycles?"

         Objection and Declaration of Mistrial

         The prosecution objected to this line of questioning as involving improper character evidence.

         Defense 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 request.

         After a 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."

         The 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.

         The 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 of conduct.

         The 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."

         The court directed the parties to research whether an instruction could cure the error, granting them a short recess to do so.

         After 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 ...

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