State v. Oliveria-Coutinho ( 2015 )

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291 Nebraska R eports
STATE v. OLIVEIRA-COUTINHO
Cite as 291 Neb. 294State of Nebraska, appellee, v. Jose C.
Oliveira-Coutinho, appellant.
___ N.W.2d ___
Filed July 10, 2015. No. S-13-798.
1. Juries: Discrimination: Appeal and Error. An appellate court reviews
de novo the facial validity of an attorney’s race-neutral explanation for
using a peremptory challenge as a question of law.
2. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.
An appellate court reviews for clear error a trial court’s factual deter-
mination regarding whether a prosecutor’s race-neutral explanation is
persuasive and whether the prosecutor’s use of a peremptory challenge
was purposefully discriminatory.
3. Juries: Equal Protection: Prosecuting Attorneys. In Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the
U.S. Supreme Court held that a prosecutor’s privilege to strike individ-
ual jurors through peremptory challenges was subject to the commands
of the Equal Protection Clause.
4. Juries: Prosecuting Attorneys. A prosecutor is ordinarily entitled
to exercise permitted peremptory challenges for any reason at all, if
that reason is related to his or her view concerning the outcome of
the case.
5. Juries: Equal Protection: Discrimination. The Equal Protection Clause
forbids the prosecutor to challenge potential jurors solely because of
their race.
6. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining
whether a prosecutor impermissibly struck a prospective juror based
on race is a three-step process. First, a defendant must make a prima
facie showing that the prosecutor exercised a peremptory challenge
because of race. Second, assuming the defendant made such a show-
ing, the prosecutor must offer a race-neutral basis for striking the juror.
And third, the trial court must then determine whether the defendant
has carried his or her burden of proving purposeful discrimination. The
third step requires the trial court to evaluate the persuasiveness of the
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STATE v. OLIVEIRA-COUTINHO
Cite as 291 Neb. 294justification proffered by the prosecutor. But the ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from,
the opponent of the strike.
7. Juries: Discrimination: Prosecuting Attorneys: Moot Question. Once
a prosecutor has offered a race-neutral explanation for the peremptory
challenges and the trial court has decided the ultimate question of inten-
tional discrimination, the preliminary issue of whether the defendant had
made a prima facie showing is moot.
8. Juries: Prosecuting Attorneys: Discrimination: Appeal and Error.
The initial question whether a prosecutor’s reasons for a peremptory
challenge were race neutral is a question of law that an appellate court
reviews de novo. The question is whether the stated reasons, on their
face, were inherently discriminatory. In making that determination,
an appellate court does not consider whether the prosecutor’s reasons
are persuasive.
9. Juries: Prosecuting Attorneys. The U.S. Supreme Court has explained
that the third step of a Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986), inquiry involves evaluating the prosecutor’s
credibility. Such credibility determinations lie within the peculiar prov-
ince of the trial judge and require deference to the trial court.
10. Criminal Law: Trial: Juries: Appeal and Error. Whether a jury is to
be kept together before submission of the cause in a criminal trial is left
to the discretion of the trial court.
11. ____: ____: ____: ____. To warrant reversal, denial of a motion to
sequester the jury before submission of the cause must be shown to have
prejudiced the defendant.
12. Jurors: Jury Instructions: Presumptions. Jurors are presumed to fol-
low their instructions unless evidence to the contrary is shown.
13. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. Regarding
historical facts, an appellate court reviews the trial court’s findings for
clear error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
14. Search and Seizure: Evidence: Trial. Evidence obtained as the direct
or indirect fruit of an illegal search or seizure, the poisonous tree, is
inadmissible in a state prosecution and must be excluded.
15. Search and Seizure: Evidence. To determine whether the evidence is a
fruit of the illegal search or seizure, a court asks whether the evidence
has been come at by exploitation of the primary illegality or whether
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STATE v. OLIVEIRA-COUTINHO
Cite as 291 Neb. 294it has instead been come at by means sufficiently distinguishable to be
purged of the primary taint.
16. Evidence. Under the independent source doctrine, the challenged evi-
dence is admissible if it came from a lawful source independent of the
illegal conduct.
17. Evidence: Constitutional Law. Under the attenuated connection doc-
trine, the challenged evidence is admissible if the causal connection
between the constitutional violation and the discovery of the evidence is
so attenuated as to rid the taint.
18. Evidence: Police Officers and Sheriffs. Under the inevitable dis-
covery doctrine, the challenged evidence is admissible if it inevitably
would have been discovered by lawful means without reference to the
police misconduct.
19. Constitutional Law: Due Process. The determination of whether
the procedures afforded an individual comport with the constitutional
requirements for procedural due process presents a question of law.
20. Constitutional Law: Appeal and Error. Claimed violations of the
compulsory process right are reviewed de novo.
21. Constitutional Law: Witnesses: Due Process: Proof. In order to show
that his or her compulsory process or due process rights have been
violated as a result of the deportation of a potential witness, a defend­
ant must (1) make an initial showing that the government has acted in
bad faith and (2) make a plausible showing that the testimony of the
deported witness would have been both material and favorable to his or
her defense.
22. Trial: Evidence: Appeal and Error. A trial court’s determination of the
relevancy and admissibility of evidence must be upheld in the absence
of abuse of discretion.
23. Trial: Witnesses. Competency of a witness is an issue to be determined
by the trial court and not by the jury.
24. ____: ____. The credibility and weight of a witness’ testimony are for
the jury to determine.
25. Expert Witnesses: Appeal and Error. The standard for reviewing the
admissibility of expert testimony is abuse of discretion.
26. Criminal Law: Constitutional Law: Due Process. Under the Due
Process Clause of the 14th Amendment and the Compulsory Process
and Confrontation Clauses of the 6th Amendment, a criminal defendant
is guaranteed a meaningful opportunity to present a complete defense.
27. Trial: Evidence. Evidence relating to an illustrative experiment is
admissible if a competent person conducted the experiment, an appa-
ratus of suitable kind and condition was utilized, and the experiment
was conducted fairly and honestly. It is not essential that conditions
existing at the time of the experiment be identical with those existing
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Cite as 291 Neb. 294at the time of the occurrence, but the conditions should be essentially
similar, that is, similar in all those factors necessary to make the com-
parison a fair and accurate one. The lack of similarity regarding the
non­essential factors then goes to the weight of the evidence rather than
to its admissibility.
28. Trial: Photographs. The admission of photographs into evidence rests
largely within the discretion of the trial court, which must determine
their relevancy and weigh their probative value against their possible
prejudicial effect.
29. Homicide: Photographs. In a homicide prosecution, photographs of a
victim may be received into evidence for purposes of identification, to
show the condition of the body or the nature and extent of wounds and
injuries to it, and to establish malice or intent.
30. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.
31. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
32. Motions for New Trial: Evidence: Witnesses. A new trial will not ordi-
narily be granted for newly discovered evidence which, when produced,
will merely impeach or discredit a witness who testified at trial.
33. Trial: Prosecuting Attorneys: Appeal and Error. When considering
a claim of prosecutorial misconduct, an appellate court first considers
whether the prosecutor’s acts constitute misconduct.
34. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does
not mislead and unduly influence the jury is not misconduct.
35. Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court
concludes that a prosecutor’s acts were misconduct, the court must next
consider whether the misconduct prejudiced the defendant’s right to a
fair trial.
36. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct
prejudices a defendant’s right to a fair trial when the misconduct so
infected the trial that the resulting conviction violates due process.
37. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is
prejudicial depends largely on the context of the trial as a whole.
38. 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
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Cite as 291 Neb. 294were extensive or isolated, (3) whether defense counsel invited the
remarks, (4) whether the court provided a curative instruction, and (5)
the strength of the evidence supporting the conviction.
39. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
40. Criminal Law: Evidence. The State is allowed to present a coherent
picture of the facts of the crimes charged, and it may generally choose
its evidence in so doing.
41. Photographs: Rules of Evidence. Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008), does not require a separate purpose for every
photograph, and it requires a court to prohibit cumulative evidence only
if it substantially outweighs the probative value of the evidence.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Todd W. Lancaster, of Nebraska Commission on Public
Advocacy, and Horacio J. Wheelock, of Horacio Wheelock
Law Offices, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ., and Pirtle, Judge.
Heavican, C.J.
I. INTRODUCTION
Jose C. Oliveira-Coutinho was charged with and convicted
of three counts of first degree murder in the deaths of Vanderlei,
Jaqueline, and Christopher Szczepanik, and also with one
count of theft by deception over $1,500. The State sought the
death penalty, and the jury found aggravating circumstances
in connection with each of the three counts of murder. A
three-judge panel was appointed for a sentencing determina-
tion hearing. Following that hearing, Oliveira-Coutinho was
sentenced to three life sentences on the murder counts and 20
years’ imprisonment on the theft by deception count, sentences
to be served consecutively. He appeals. We affirm.
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Cite as 291 Neb. 294II. FACTUAL BACKGROUND
1. Szczepanik /Oliveira-Coutinho
R elationship
Vanderlei and Jaqueline moved from Brazil to Florida.
While in Florida, their son Christopher was born. The fam-
ily then moved to Omaha, Nebraska, as missionaries for their
church to renovate an old school building located on South
16th Street.
At some point, the church became financially unstable and
Vanderlei became involved in his own renovation and con-
struction projects. He purchased and was renovating a property
located on Park Avenue in Omaha, and his business, IGIT
Services Corporation (IGIT), was also hired for a lead stabili-
zation project in Omaha.
Oliveira-Coutinho moved from Brazil to Florida in 2005,
where he met and worked for Vanderlei. He moved to Omaha
with the family and resided with them at the South 16th Street
property. Oliveira-Coutinho led one of Vanderlei’s work crews.
In early 2009, Oliveira-Coutinho contacted childhood friends
Valdeir Goncalves-Santos and Elias Lourenco-Batista, who
lived in Brazil, about working in the United States. Both
agreed, moved to Omaha to work for Vanderlei in April 2009,
and lived at the Park Avenue address.
2. Family Disappears
On January 6, 2010, the Szczepaniks’ pastor from Florida
received a telephone call from a friend of the Szczepaniks who
was unable to contact the family. Jaqueline’s adult daughter
also had tried and failed to contact her mother. A member of
Vanderlei’s work crew reported that he had last seen Vanderlei
near the end of the workday on December 17, 2009, at the
Park Avenue address. The pastor then contacted Oliveira-
Coutinho. Oliveira-Coutinho indicated that he was not con-
cerned because Vanderlei had previously gone somewhere
without telling him.
After arriving in Omaha on January 8, 2010, the pastor from
Florida and another church official reported the Szczepaniks’
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Cite as 291 Neb. 294disappearance to the Omaha Police Department. A wellness
check was then initiated at the South 16th Street address.
Oliveira-Coutinho let law enforcement and church officials
into the building. Located in the parking lot was a white Dodge
van with in-transit papers dated December 16, 2009, another
white truck apparently belonging to IGIT, and a dark-colored
Volvo registered to Vanderlei. A Nissan pickup registered to
Vanderlei was not in the parking lot.
Once inside the home, law enforcement noted that the living
quarters looked like someone had been living there, but had
just gone out, and that there were no signs of a disturbance.
The next day, Oliveira-Coutinho gave the church officials
another tour of the South 16th Street property, as well as a tour
of the Park Avenue property. Oliveira-Coutinho indicated that
he had moved to the Park Avenue property because the heat did
not work at the South 16th Street address.
A missing persons investigation was opened on January
11, 2010. No response was received from Vanderlei’s and
Jaqueline’s cell phones. E-mails to IGIT were not returned.
The last day that Christopher had been at school was December
17, 2009. The last telephone call from either cell phone was
from Jaqueline to Vanderlei at 8:46 p.m. on December 17.
Vanderlei’s Nissan truck was found on January 30, 2010, about
21⁄2 miles from the Park Avenue location and about one-half
mile from the South 16th Street location. The truck had a tow
notice from 2 days earlier. A neighbor testified that the truck
had been parked one afternoon in December by a Hispanic
male, who said “‘hi’” in English and kept walking.
3. Case Transferred to Homicide
On February 1, 2010, the Omaha Police Department’s homi-
cide unit was briefed on the case. The move to the homicide
unit was due to a bank surveillance video which showed that
someone other than the Szczepaniks had been using the fam-
ily’s bank cards in Omaha on December 17, 2009. Search
warrant applications were prepared on February 1, 2010, and
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Cite as 291 Neb. 294warrants were executed at the South 16th Street and Park
Avenue addresses that same day.
While executing the warrants at the Park Avenue address,
officers found items matching those purchased with the fam-
ily’s bank cards after the family had gone missing, notably
two space heaters. Clothing and hats similar to those worn
by the persons seen in the bank surveillance video were also
seized, including a black hat with stylized white lettering that
spelled “Fox” and a tan hooded coat. In the same room where
the black hat was found, law enforcement recovered driving
documents, blank checks, and deposit slips, all in Oliveira-
Coutinho’s name, as well as checks written on IGIT’s account
and mail postmarked December 23, 2009, and addressed to
Jaqueline, Vanderlei, and IGIT.
In the master bedroom at the South 16th Street address,
law enforcement found, among other items, a “Thomas the
Train” bedspread, Jaqueline’s eyeglasses, checks made out to
IGIT totaling $95,919, checks made out to Vanderlei totaling
$2,800, cash totaling $36,400, and $10,000 in Menards gift
checks. In addition to those items, law enforcement noted that
items at the South 16th Street address had been moved since
the initial wellness check.
4. Questioning of Oliveira-Coutinho,
Goncalves-Santos, and
Lourenco -Batista
Prior to exercising the search warrants on February 1, 2010,
officers made contact with Oliveira-Coutinho, who was stand-
ing in the threshold of the South 16th Street property when
officers arrived. Oliveira-Coutinho was wearing a tan coat, a
long-sleeved camouflage shirt, and a black hat with white let-
tering that spelled “DC.” Officers tried to communicate with
Oliveira-Coutinho, but had difficulty because of a language
barrier. Eventually, Oliveira-Coutinho was asked to sit in the
back seat of the police cruiser. While there, he made a tele-
phone call to a person who was able to talk with one of the
officers over Oliveira-Coutinho’s cell phone and interpret and
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Cite as 291 Neb. 294explain the situation to him. Upon arriving at the scene, offi-
cers recognized the hat worn by Oliveira-Coutinho as similar
to one worn in the bank surveillance video.
Oliveira-Coutinho, Goncalves-Santos, and Lourenco-Batista
were all questioned on February 1 and into February 2, 2010,
and again later in February and March. When Goncalves-
Santos was taken into custody, he was wearing a white jacket
with black stripes on the sleeves.
5. Bank R ecords, Automatic
Teller M achine Footage,
and Shopping Sprees
Bank records showed that Oliveira-Coutinho’s bank bal-
ance on December 10, 2009, was $476.96. In approximately
the 1 month preceding, there had been just two deposits—
for $600 and $363. But between December 21, 2009, and
January 5, 2010, three deposits totaling $7,000 were made
into Oliveira-Coutinho’s bank account, all from IGIT’s
account. Nearly all of that money had been transferred out
of the account by the end of the subsequent statement cycle,
much of it through withdrawals made by a service described
on his statement as “Xoom.” Similar deposits were made
into the accounts of Goncalves-Santos and Lourenco-Batista,
again with the payments coming from IGIT. In addition, 14
automatic teller machine withdrawals were made from the
IGIT and Szczepanik accounts between December 17, 2009,
and January 20, 2010. No other unauthorized withdrawals
occurred after February 1.
Automatic teller machine footage shows individuals in a
dark-colored car and a white van, similar to the van driven by
Oliveira-Coutinho, making withdrawals from the Szczepaniks’
bank accounts. The first withdrawal was on December 17,
2009, at 11:59 p.m. Though faces are not discernible because
the vehicle’s occupants were wearing hats or hoods, one occu-
pant appears to be wearing a long-sleeved camouflage shirt
or hoodie, and in another, a tan hooded coat. Yet still another
shows an occupant wearing a black hat with white stylized
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Coutinho wore such a hat.
The Szczepaniks’ debit cards were used to make various
purchases, including purchases at a store referred to as either
“Hat World” or “LIDS.” At that store, a white hat with black
lettering that spelled “Oklahoma” and a black hat with white
lettering that spelled “DC” were purchased. On December 31,
2009, three individuals purchased items at a Wal-Mart store
in Council Bluffs, Iowa. Those individuals arrived in a dark-
colored sedan; one individual was wearing a tan coat with dark
lining and a black hat with white letters similar to the “DC”
hat, while another individual was wearing a white coat with
black stripes on the sleeves.
6. Initial Charges
Following law enforcement’s questioning of Oliveira-
Coutinho and others, all were placed on immigration holds
by the federal government. Lourenco-Batista was ordered
deported on April 22, 2010. On July 29, Oliveira-Coutinho,
Goncalves-Santos, and Lourenco-Batista were charged with
unauthorized use of a financial transaction device. The charges
against Goncalves-Santos and Lourenco-Batista were dropped
on January 11, 2011. On January 28, Goncalves-Santos was
charged with three counts of first degree murder. A few months
later, Lourenco-Batista was deported.
Goncalves-Santos’ trial began on August 15, 2011. After
7 days of evidence, Goncalves-Santos interrupted his trial
to cooperate with the State and law enforcement. As part of
this cooperation, Goncalves-Santos informed law enforcement
that he and Lourenco-Batista killed the Szczepanik family at
Oliveira-Coutinho’s direction.
On August 25, 2011, pursuant to a plea agreement,
Goncalves-Santos pled guilty to one count of second degree
murder for killing Vanderlei. Also pursuant to the agreement,
in exchange for his plea and truthful testimony in any current
or future cases related to the murders, the State agreed to rec-
ommend a sentence of 20 years’ to 20 years’ imprisonment.
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Cite as 291 Neb. 294With credit for good time and time served, Goncalves-Santos
could reduce his sentence to 7 years 5 months’ imprison-
ment, after which he would likely be deported to Brazil.
As of Oliveira-Coutinho’s trial, Goncalves-Santos had not
been sentenced.
7. Testimony of Goncalves-Santos
At Oliveira-Coutinho’s trial, Goncalves-Santos testified
that on December 17, 2009, he and Lourenco-Batista were
working at the Park Avenue property when Oliveira-Coutinho
arrived. Goncalves-Santos testified that Oliveira-Coutinho was
unhappy working for Vanderlei and wanted to “get” him.
Oliveira-Coutinho tried to persuade Goncalves-Santos and
Lourenco-Batista to help him kill Vanderlei.
Oliveira-Coutinho gave Lourenco-Batista a baseball bat and
gave Goncalves-Santos an iron bar and told them to go to the
basement where Vanderlei was working and kill him. Lourenco-
Batista went into the basement, but did not kill Vanderlei.
Oliveira-Coutinho then drove Goncalves-Santos and
Lourenco-Batista to the South 16th Street property. The men
went to Oliveira-Coutinho’s bedroom, where Oliveira-Coutinho
showed the others his bank balance and complained that he had
no money. Goncalves-Santos testified that Oliveira-Coutinho
was upset because Vanderlei had lowered their wages, because
work was slow in the winter months. Oliveira-Coutinho indi-
cated again that they had to kill Vanderlei and that it had to
be “‘today.’”
Oliveira-Coutinho, Goncalves-Santos, and Lourenco-Batista
waited on the staircase for Vanderlei to come home. Oliveira-
Coutinho handed Goncalves-Santos a box cutter that looked like
a gun. Vanderlei came home. Lourenco-Batista hit Vanderlei,
causing him to fall. Vanderlei screamed for Jaqueline and kept
saying, “‘It’s me, guys.’” Vanderlei sat up, and Goncalves-
Santos hit him with the iron bar. Lourenco-Batista then hit
Vanderlei on the forehead. At that point, Vanderlei was appar-
ently dead.
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Cite as 291 Neb. 294Meanwhile, Jaqueline came running to Vanderlei. Oliveira-
Coutinho grabbed her and punched her in the mouth. He
then told Lourenco-Batista to get Christopher. Jaqueline and
Christopher were taken to Oliveira-Coutinho’s bedroom.
Goncalves-Santos testified that Jaqueline’s legs and hands were
taped and that “we tied her with a sock.”
Oliveira-Coutinho demanded bank account numbers from
Jaqueline. She told him the numbers. Oliveira-Coutinho
retrieved the bank card and returned with the card and a
box of checks. Oliveira-Coutinho made Jaqueline sign the
checks. At this point, Oliveira-Coutinho left Lourenco-Batista
with Jaqueline and Christopher while he and Goncalves-Santos
went to the bank to withdraw cash. After the trip to the bank,
Oliveira-Coutinho drove to the Missouri River to look for a
place to “throw him away and be free of these people.”
After returning to the South 16th Street address, Oliveira-
Coutinho and Goncalves-Santos found that Lourenco-Batista
had untaped Jaqueline’s hands. Oliveira-Coutinho said that
doing so was “‘dangerous. This woman might hit you.’” They
tied Jaqueline back up, but took the tape off her feet and put
a pillowcase over her head. Oliveira-Coutinho warned her
that “‘[i]f you do anything, you know what’s gonna happen
to Christopher.’”
Goncalves-Santos and Lourenco-Batista then walked
Jaqueline down the hallway to a staircase, though not the same
staircase where Vanderlei was killed. Oliveira-Coutinho stayed
with Christopher. Goncalves-Santos stayed at the top of the
staircase. Lourenco-Batista tied a rope around Jaqueline’s neck,
and the other end of the rope was tied to a railing at the top
of the staircase. Jaqueline begged for her life, but Lourenco-
Batista pushed her down the stairs. According to Goncalves-
Santos’ testimony, Jacqueline “rolled over and she hit the
wall. And then she rolled again and she went down, and she
stayed with her head down. Her knees were almost touching
the ground and she was head-down . . . .” Goncalves-Santos
took the rope off Jaqueline and placed her at the bottom of
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you done?’”
They repeated the process with Christopher. Goncalves-
Santos testified that he could not “stand to look at him, to see
Christopher moving around.” When it was finished, Oliveira-
Coutinho again asked, “‘Is it over?’” Goncalves-Santos went
to Christopher, who was still moving, and laid him next
to Jaqueline.
While Oliveira-Coutinho looked for money, Goncalves-
Santos and Lourenco-Batista wrapped the bodies in plastic
and sheets and loaded them into Oliveira-Coutinho’s van.
Oliveira-Coutinho then drove to the Missouri River, where
Goncalves-Santos and Lourenco-Batista unloaded the bodies.
While Oliveira-Coutinho drove, Goncalves-Santos cut open
the stomach of each body, apparently to keep the bodies from
floating, and tied each body’s legs to iron bars. The bodies
were then placed in the river, but they continued to float.
Oliveira-Coutinho was concerned that the bodies would be
found, so they returned to the South 16th Street address to get
a knife to cut the rope. Goncalves-Santos cut the iron bars from
Vanderlei’s and Jaqueline’s bodies, but Christopher’s body had
disappeared. Goncalves-Santos threw the knife, iron bars, base-
ball bat, the contents of a bucket of Vanderlei’s blood, and their
cleaning supplies into the river.
The men returned to the South 16th Street location and
cleaned more thoroughly. In addition, according to Goncalves-
Santos, he and Oliveira-Coutinho parked Vanderlei’s truck on
a nearby street to make it look like the family had gone on
vacation. The men then returned to the Park Avenue property
to sleep.
Goncalves-Santos testified that they wrote checks and cashed
them at a Wells Fargo Bank and also that Oliveira-Coutinho
used the Szczepaniks’ bank cards while with Goncalves-Santos
and Lourenco-Batista. Goncalves-Santos testified that Oliveira-
Coutinho hid the bank cards and checks in his van or in the
attic at the Park Avenue property.
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Cite as 291 Neb. 294Goncalves-Santos testifed that he told his wife about the
killings, but denied telling anyone else. He said that he did
not tell law enforcement the truth at first because he did
not know whom to trust, and admitted on cross-examination
that he made inconsistent statements to law enforcement.
Goncalves-Santos testified that he decided to tell the truth for
Jaqueline’s daughter’s sake. He also testified that he believed
he killed the family because he was with Oliveira-Coutinho
and Lourenco-Batista when everything happened.
In addition to his testimony, Goncalves-Santos led law
enforcement to the spot where the bodies had been placed
in the river, though flooding prevented further search at that
time. In addition, because of Goncalves-Santos’ information,
Vanderlei’s blood was found at the South 16th Street property
near a radiator in the entryway to the building. Vanderlei’s
blood was also found in a mop bucket located in a utility closet
in the building.
On October 13, 2011, Goncalves-Santos returned with law
enforcement to the location where the bodies were disposed of.
Eventually, skeletal remains bundled in plastic and a “Thomas
the Train” sheet were found. A pathologist testified that DNA
evidence established the remains as Christopher but that the
cause of death could not be determined due to the condition
of the partial skeletal remains. Also recovered was a metal
grate with a rope attached. Goncalves-Santos testified that the
rope was the one they used to hang Jaqueline and Christopher.
No other evidence was recovered, nor were Vanderlei’s or
Jaqueline’s bodies found.
8. Testimony of Patricia Barbosa
dos Santos-Oliveira
Oliveira-Coutinho’s wife, Patricia Barbosa dos Santos-
Oliveira, testified. According to her testimony, Oliveira-
Coutinho had a 5-year plan, which began in 2005, to earn
money and then return to his family in Brazil. In addition,
Patricia testified that Goncalves-Santos and Lourenco-Batista
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United States.
Patricia testified that Vanderlei had “laid [Oliveira-Coutinho]
off,” but then rehired him at a lower wage, and that Oliveira-
Coutinho was angry because he worked hard for “very little
money.” Oliveira-Coutinho told Patricia that Vanderlei treated
him “like a slave,” that Oliveira-Coutinho hated Vanderlei, and
that he was thinking of killing Vanderlei. Patricia told him that
“only God has the power to give life and . . . to take life” and
that he could not kill Vanderlei because he could not repent
from that. Oliveira-Coutinho replied that he would not kill
Vanderlei because of Christopher. When Patricia later asked if
Vanderlei and Oliveira-Coutinho’s relationship had improved,
he said that it had not but that it did not matter, because he
and “the boys” had something planned. According to Patricia,
Oliveira-Coutinho referred to Goncalves-Santos and Lourenco-
Batista as “the boys.”
At the end of January or beginning of February 2010,
Oliveira-Coutinho contacted Patricia in Brazil and requested
that if anything happened to him she should transfer money
from his bank accounts to her bank accounts in Brazil. She
testified that she did so via “Xoom.” She also testified that
Oliveira-Coutinho never told her that the Szczepanik family
was missing.
By mid-February 2010, Patricia began almost daily contact
with Goncalves-Santos’s wife and assisted the Omaha Police
Department in making contact with her. Patricia testified that
she assisted law enforcement because “when you’re made
aware of a crime being committed and you don’t report that
crime, then I believe that you are just as guilty as the per-
petrators of that crime. And I did not want to have that guilt
on me.”
9. Motion for A dvance Ruling —
Goncalves-Santos Cross-Examination
As relevant on appeal, Oliveira-Coutinho filed a motion for
advance ruling seeking to cross-examine Goncalves-Santos
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ing of animals, his threats to kill his wife, and any other vio-
lent or antisocial tendencies or behaviors. In connection with
this, Oliveira-Coutinho also sought to introduce the testimony
of Renan Diaz, one of Goncalves-Santos’ cellmates at the
Douglas County Correctional Center. Oliveira-Coutinho argued
that this evidence was relevant and went to the competency of
Goncalves-Santos as a witness under rule 601.1
The district court rejected Oliveira-Coutinho’s motion for
advance ruling. It reasoned that the evidence Oliveira-Coutinho
sought to introduce had no bearing on Goncalves-Santos’ com-
petency as a witness and, further, did not bear on Goncalves-
Santos’ credibility, because none of the questions which
Oliveira-Coutinho sought to ask were probative of Goncalves-
Santos’ truthfulness or lack thereof.
The district court further concluded that Oliveira-Coutinho
could not ask Diaz questions related to specific instances
of Goncalves-Santos’ conduct, because such extrinsic evi-
dence, under rule 608(2),2 could not be used to attack a wit-
ness’ credibility.
The district court next rejected Oliveira-Coutinho’s con-
tention that the evidence which he sought to admit would
contradict Goncalves-Santos’ presumed testimony that he,
Goncalves-Santos, was not violent, but that he killed only under
Oliveira-Coutinho’s orders. The district court found there was
nothing to suggest that Goncalves-Santos would testify that
he was not violent; to the contrary, his testimony about com-
mitting the murders would tend to support the conclusion that
Goncalves-Santos was violent. The evidence Oliveira-Coutinho
sought to introduce, then, would not contradict Goncalves-
Santos’ testimony.
Finally, the district court rejected Oliveira-Coutinho’s
assertions that these questions of Goncalves-Santos would
1
Neb. Evid. R. 601, Neb. Rev. Stat. § 27-601 (Reissue 2008).
2
Neb. Evid. R. 608(2), Neb. Rev. Stat. § 27-608(2) (Reissue 2008).
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Cite as 291 Neb. 294show bias on the part of Goncalves-Santos against Oliveira-
Coutinho. The district court reasoned that none of the ques-
tions which Oliveira-Coutinho sought to ask touched upon the
relationship between Oliveira-Coutinho and Goncalves-Santos
or upon Goncalves-Santos’ self-interest.
Oliveira-Coutinho filed a motion to reconsider, alleging
that cross-examination on the issues sought was “‘reverse
404(b)’”3 evidence offered to prove Goncalves-Santos’ con-
scious guilt, as well as for impeachment if Goncalves-Santos
testified otherwise. The court denied the motion to recon-
sider, reasoning that the evidence could not show Goncalves-
Santos’ conscious guilt where Goncalves-Santos had admitted
his guilt.
10. Other Pretrial Motions
(a) Motion to Sequester
Prior to trial, Oliveira-Coutinho sought a change of venue
and to have the jury, once selected, sequestered for the duration
of the trial due to pretrial publicity. The district court granted
the motion with regard to sequestering the jury for delibera-
tions but otherwise denied the motion, concluding that the evi-
dence before it showed that while there had been significant
pretrial publicity, it was not “invidious, inflammatory, mislead-
ing, or biased against [Oliveira-Coutinho].”
(b) Family Photograph
Prior to trial, Oliveira-Coutinho sought to have a family
photograph of the Szczepaniks excluded from evidence as
prejudicial. The district court denied that motion, agreeing with
the State that in this case, the photograph was necessary for
purposes of identification.
(c) Handwriting Expert
Oliveira-Coutinho also objected to the State’s handwrit-
ing expert, Charles Eggleston. The district court held a
3
See, Fed. R. Evid. 404(b); Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Cum. Supp. 2014).
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Cite as 291 Neb. 294Daubert/Schafersman hearing regarding the admissibil-
ity of Eggleston’s testimony.4 The district court found that
Eggleston qualified as an expert and that his testimony satis-
fied the standards of Daubert/Schafersman and was there-
fore admissible.
At trial, Eggleston testified that the evidence strongly sup-
ported the conclusion that Vanderlei wrote the checks found
during the execution of the Park Avenue search warrant, but
that he did not sign the credit card slips. He also testified
that the evidence very strongly supported the proposition that
Jaqueline signed the 13 checks processed after December 17,
2009, and also wrote the numeral and narrative dollar amounts,
but that she did not write the payee and date entries. Eggleston
testified that the evidence moderately supported the proposi-
tion that one person wrote the payee and date entries on all
13 checks.
(d) Motion to Dismiss
Prior to trial, Oliveira-Coutinho filed a motion to dismiss,
alleging that witnesses who would have provided exculpa-
tory evidence were deported, thus violating his due process
and compulsory process rights under the Fifth and Sixth
Amendments to the U.S. Constitution and article I of the
Nebraska Constitution. On appeal, Oliveira-Coutinho is pri-
marily concerned with the testimony of Ricardo Gonzalez-
Mendez and of Lourenco-Batista, though at trial, he also
sought testimony from Diaz.
At a hearing on the motion, evidence was produced to sug-
gest that Oliveira-Coutinho was involved in a romantic rela-
tionship with Gonzalez-Mendez at the time of the murders.
Oliveira-Coutinho claimed that Gonzalez-Mendez could pro-
vide him with an alibi.
The district court noted first that two others were allegedly
with Oliveira-Coutinho and Gonzalez-Mendez on the night
4
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.
Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001).
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Cite as 291 Neb. 294of the murders and that one of those individuals had been
located but had not confirmed Oliveira-Coutinho’s alibi.
The district court also noted that the time line of events did
not support Oliveira-Coutinho’s claim that his due process and
compulsory process rights were violated. Rather, the time line
shows that Oliveira-Coutinho was first questioned on February
1, 2010, and was placed on a U.S. Immigration and Customs
Enforcement (ICE) hold within 24 hours after the interview.
He had been in custody since that time and had been given
his Miranda rights5 and interviewed multiple times. Within a
few hours of asking for an attorney on March 11, Oliveira-
Coutinho had one.
Meanwhile, Gonzalez-Mendez was ordered removed on
April 15, 2010, and following a felony conviction for criminal
impersonation, was deported on October 20. Lourenco-Batista
was ordered removed from the United States on April 22,
2010; he was later deported. Despite an international warrant
for his arrest, Lourenco-Batista remains at large. Meanwhile,
Oliveira-Coutinho was not charged with the murders until
September 1, 2011, and did not reveal his alibi defense to
investigators until later in the fall of 2011.
In sum, the district court denied the motion to dismiss, rea-
soning that there was a
total absence of evidence in the record that the federal
government departed from normal deportation procedures
in the removal of Gonzalez-Mendez or any of the other
individuals mentioned . . . nor was any evidence offered
in support of this Motion that these individuals were
deported by the federal government so that the State of
Nebraska could gain an unfair tactical advantage over
[Oliveira-Coutinho] at trial. In fact, there was no evi-
dence at the hearing on this Motion to show that either
the federal government or the State was aware that these
5
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
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Cite as 291 Neb. 294individuals had the information that [Oliveira-Coutinho]
recently disclosed they possessed.
(e) Motion to Suppress
Oliveira-Coutinho also filed motions to suppress his
February 1, 2010, stop, search, and detention, under the Fourth
Amendment, and to suppress any statements he made dur-
ing questioning on March 11, under the Fifth Amendment.
The district court held an evidentiary hearing, but ultimately
denied both motions. As to the stop, the district court con-
cluded that “[b]ased upon the collective information of the
police engaged in their common investigation . . . and given
the totality of circumstances, which included this complete
language barrier . . . they did satisfy the specific, articulable
facts requirement for . . . an investigative stop.” Further, the
district court found that this encounter used the least intrusive
methods reasonably available.
On appeal, Oliveira-Coutinho does not raise any Fifth
Amendment claims, but instead argues only that his seizure
was illegal under the Fourth Amendment and that, as such,
subsequent statements are inadmissible.
11. Batson Challenge
During voir dire, the State asked whether any prospec-
tive juror had gotten a ticket or had a family member get a
ticket; additionally, the State inquired as to whether anyone
had spent at least one night in jail or had a family member
who had spent one night in jail. A prospective juror, B.H.,
answered that she had gotten a conviction for driving under
the influence in 1997. The juror indicated her ability to be
fair and impartial despite the conviction. The State thanked
the juror, who then also remembered a 1999 disturbing the
peace violation, though the juror could not remember many
details. The juror again indicated that she could remain fair
and impartial.
The next day, the same juror met privately with the dis-
trict court and both counsel and indicated that the juror’s
son had also been convicted of a federal weapons charge and
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Cite as 291 Neb. 294was currently incarcerated and that the son had previously
been convicted of a state weapons charge and sentenced to
3 to 6 years’ imprisonment. She indicated that she believed
her son had been treated fairly and that she could be fair
and impartial.
The State exercised its fourth peremptory strike to remove
this juror from the panel. Oliveira-Coutinho made a Batson
challenge, indicating the State had struck the juror, who was
an African-American woman, despite the fact that she stated
she could be fair and impartial.6 The State responded by not-
ing that it was concerned the juror had failed to immediately
respond to the question with information about her son’s crimi-
nal record and also because the juror did not initially remem-
ber her disturbing the peace conviction or the background of
that conviction; this gave the State pause regarding the juror’s
memory and her ability to serve as a juror. Finally, the State
noted that the juror did have a son who had been convicted of
multiple felonies and that in fact, another juror with a simi-
lar relationship had been struck using another of the State’s
peremptory challenges.
The court found that the State had articulated a race-neutral
explanation for the strike and overruled Oliveira-Coutinho’s
challenge.
12. Motion for Mistrial
During the State’s opening argument, it explained that the
primary evidence of the events of the murder would be pro-
vided by Goncalves-Santos. The State then stated:
Goncalves-Santos will come and tell you the truth about
that night. And it is brutal and it is horrible. It is frank and
honest. He will tell you about unsavory, gut-wrenching
details, but it’s the truth.
The information that he provides is direct. It’s certainly
unpleasant, horribly so, but it is corroborated by other
6
See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986).
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Cite as 291 Neb. 294testimony and it’s corroborated by independent physi-
cal evidence. And you’ll hear about the truth from that
night from [Goncalves-Santos]. And what you’ll also hear
about is — it’s the truth. He didn’t have to tell you. See,
you’ll hear about [Goncalves-Santos’] being in this room
about 13 months ago, this courtroom. You’ll hear about
his being on trial for homicide, for murder.
[Goncalves-Santos] is not sophisticated. He’s illiter-
ate. He’s uneducated, and he’d only been — before he
was arrested, in the United States about six months. So
in the — the course of just having his trial and the case
was still being presented against him, the State’s case was
still ongoing. . . . Goncalves-Santos had those events,
the true events weighing on his conscience. He couldn’t
hold it anymore, and during the course of his trial he
broke down.
He, through his attorney, asked Judge Otepka for —
for a delay because he wanted to tell the truth. He
stopped the trial in the middle of the State’s case because
he wanted to tell the truth, and he delayed the trial, mind
you, at that point in August of 2011, with no physical
evidence. It was testimonial at that point, primarily testi-
monial, but he stopped the trial with no physical evidence
because he wanted to tell the truth. He delayed a trial
with no physical evidence at that time. When he poten-
tially could be days away from getting acquitted, going
back to Brazil even, but he stopped it.
Now, certainly he stopped it, and he was — met with
law enforcement, who told him you have to tell the
complete truth with all the details. He did that and law
enforcement verified it. And the county attorney, our
office, allowed him to plead guilty to second-degree mur-
der for the killing of Vanderlei Szczepanik, for what he
did, but also so that he could tell the truth. The proviso
through all of this was that he must tell the complete and
utter truth at all times.
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Cite as 291 Neb. 294Judge Otepka is the person who — as he described
at different times along the process, but you’ll hear
about this through the evidence of the people involved.
Judge Otepka is the one who metes out sentences to any
defendant. But as it relates to [Goncalves-Santos, he]
believes his life is over no matter what happens to him.
But as part of his plea agreement, the county attorney
and his attorneys, [Goncalves-Santos’] attorneys, will
recommend to the judge a 20-year sentence, as long as
he continues and completes [his testimony] telling the
truth. Ultimately, Judge Otepka is the one that hands out
that sentence.
At the conclusion of the State’s opening, a sidebar was held
at which Oliveira-Coutinho sought a mistrial or, in the alter-
native, the district court judge’s recusal. Counsel argued that
counsel for the State
looked at you [Judge Otepka] and said that Judge Otepka
will sentence Goncalves-Santos when he was talking
about the deal that the Douglas County Attorney’s Office
made with Goncalves-Santos. He looked at you and said
that Judge Otepka will sentence him.
In that context he was stating that, essentially he was
making you a witness, as if you were vouching for the
credibility of Goncalves-Santos by giving him the reason-
able sentence.
The district court denied both motions.
13. A libi Evidence
At trial, Oliveira-Coutinho attempted to establish a founda-
tion for an alibi. He sought to introduce evidence, through
cross-examination of Goncalves-Santos, that Oliveira-Coutinho
and Gonzalez-Mendez were involved in a sexual relation-
ship and that he spent many nights with Gonzalez-Mendez
at Gonzalez-Mendez’ home. In addition, Oliveira-Coutinho
sought to introduce evidence that he had looked for Gonzalez-
Mendez following the latter’s deportation, but that the search
was unsuccessful.
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Cite as 291 Neb. 294The judge sustained the State’s relevancy objections on
each. As to the relationship with Oliveira-Coutinho, in an
offer of proof, Goncalves-Santos testified that he was aware
that Oliveira-Coutinho spent many evenings with Gonzalez-
Mendez, though there was no specific testimony by Goncalves-
Santos (or anyone else) that Oliveira-Coutinho spent the eve-
ning of the murders with Gonzalez-Mendez. As for the search
for Gonzalez-Mendez, an investigator testified that it was pos-
sible to locate individuals who were in other countries; how-
ever, no testimony as to the ultimately futile efforts to locate
Gonzalez-Mendez was permitted.
14. R eenactment of Murders
At trial, Oliveira-Coutinho sought to introduce evi-
dence, through the testimony of yet another investigator,
that Jaqueline’s and Christopher’s murders could not have
occurred as the State theorized. That investigator testified,
in an offer of proof, to a reenactment that he and a col-
league tried at the crime scene. The investigator testified
that a rope was tied to the colleague’s neck and that the col-
league then walked down the stairs, but at no point was ever
suspended. Oliveira-Coutinho argued that this reenactment
showed that Goncalves-Santos was lying about how Jaqueline
and Christopher were killed.
Following the offer of proof, the district court formally
sustained the State’s foundation objection to the investiga-
tor’s testimony and accompanying photographs. The district
court reasoned that any experiments, in order to be admissible,
must be done under substantially similar circumstances to the
original event, but that there was no evidence that this was the
case here.
15. Testimony of Forensic A nthropologist and
Dentist and A dmission of Photographs
of Skeletal R emains
At trial, the State offered the testimony of Michael Finnegan,
a forensic anthropologist, and of John Filippi, a forensic dentist.
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Cite as 291 Neb. 294Both examined the skeletal remains found in the Missouri
River, primarily for identification purposes. Finnegan testified
that his examination indicated that the remains belonged to a
person around 8.2 years of age, plus or minus 1 year. He also
testified that the victim had suffered a perimortem nasal frac-
ture, though he could not tell for certain whether the fracture
was suffered just prior to or just after death. Filippi testified
that based on his examination, he placed the age of the remains
at 7 years, plus or minus 2 years.
In addition to their examinations, according to Filippi,
Finnegan used a drill belonging to Filippi to remove DNA from
the humerus bone of the skeletal remains. That DNA sample
later came back as a match to Christopher.
Oliveira-Coutinho filed a motion to strike the testimony
of each expert or, in the alternative, a motion for mistrial,
and also objected to the admission of exhibits Nos. 553, 558,
566, 569, and 571. Those exhibits were photographs of the
skeletal remains found in this case, including several close-
ups of the skull taken from different angles. Counsel argued
that the photographs were cumulative and unduly prejudicial.
That objection was overruled based on the State’s conten-
tion that the photographs were necessary for the testimony of
Finnegan and Filippi. The objection to the photographs was
renewed during Finnegan’s testimony and was overruled. The
district court denied the motions to strike and the motions
for mistrial.
16. Motion for New Trial
Following the guilty verdicts, Oliveira-Coutinho filed a
motion for new trial on the basis of newly discovered evidence.
That evidence consisted of the affidavit of Kak Thoan. Thoan
was placed in a holding cell at the Douglas County Courthouse
with Goncalves-Santos. During their time together, which was
confirmed by court records, Goncalves-Santos allegedly told
Thoan that Oliveira-Coutinho was “not a good person,” but
that Oliveira-Coutinho did not kill the Szczepanik family
and was not there when Goncalves-Santos killed the family.
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Cite as 291 Neb. 294Thoan also noted in his affidavit that “it was clear to me [that
Goncalves-Santos] was crazy. He had mental problems. He
would laugh after every statement he made.”
The district court denied the motion for new trial, reason-
ing that Thoan’s testimony only went to Goncalves-Santos’
credibility and was insufficient to support a new trial. In
addition, the court noted that Thoan’s statements were not
wholly inconsistent with Goncalves-Santos’ testimony:
Goncalves-Santos testified that he and Lourenco-Batista, but
not Oliveira-Coutinho, actually killed the Szczepanik family
and that Oliveira-Coutinho was not in the room at the time
of the murders. The district court also noted that Thoan and
Goncalves-Santos were speaking English, which was neither’s
primary language.
III. ASSIGNMENTS OF ERROR
On appeal, Oliveira-Coutinho assigns that the district court
erred in (1) not granting his Batson challenge, (2) denying his
request to sequester the jury during the trial, (3) denying his
motion to suppress, (4) denying his motion to dismiss due to
the deportation of several witnesses, (5) denying his motion for
advanced ruling on certain evidentiary issues, (6) denying his
motion in limine regarding the testimony of the State’s hand-
writing expert, (7) not admitting alibi evidence, (8) not admit-
ting evidence of the reenactment of the murders by his inves-
tigators, (9) admitting a photograph of the Szczepanik family,
(10) denying his motion for new trial based on newly discov-
ered evidence, (11) denying his motion for mistrial based on
the State’s opening statements, and (12) not granting a mistrial
or striking the testimony of the State’s forensic anthropolo-
gist and dentist and in admitting photographs of Christopher’s
skeletal remains for the purposes of that testimony.
IV. ANALYSIS
1. Batson Challenge
In his first assignment of error, Oliveira-Coutinho assigns
that the district court erred in not granting his Batson challenge
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Cite as 291 Neb. 294to the State’s exercise of its peremptory challenge against
juror B.H.
(a) Standard of Review
[1,2] An appellate court reviews de novo the facial validity
of an attorney’s race-neutral explanation for using a peremp-
tory challenge as a question of law.7 An appellate court reviews
for clear error a trial court’s factual determination regarding
whether a prosecutor’s race-neutral explanation is persuasive
and whether the prosecutor’s use of a peremptory challenge
was purposefully discriminatory.8
(b) Analysis
[3-5] In Batson v. Kentucky,9 the U.S. Supreme Court held
that a prosecutor’s privilege to strike individual jurors through
peremptory challenges was subject to the commands of the
Equal Protection Clause. A prosecutor is ordinarily entitled
to exercise permitted peremptory challenges for any reason
at all, if that reason is related to his view concerning the out-
come of the case.10 But the Equal Protection Clause forbids
the prosecutor to challenge potential jurors solely because of
their race.11
[6] Determining whether a prosecutor impermissibly struck
a prospective juror based on race is a three-step process.12
First, a defendant must make a prima facie showing that the
prosecutor exercised a peremptory challenge because of race.
Second, assuming the defendant made such a showing, the
prosecutor must offer a race-neutral basis for striking the juror.
And third, the trial court must then determine whether the
defendant has carried his or her burden of proving p­ urposeful
7
State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).
8
Id.9
Batson v. Kentucky, supra note 6.
10
See id.11
See id.12
See State v. Nave, supra note 7.
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Cite as 291 Neb. 294discrimination.13 The third step requires the trial court to
evaluate the persuasiveness of the justification proffered by the
prosecutor.14 But the ultimate burden of persuasion regarding
racial motivation rests with, and never shifts from, the oppo-
nent of the strike.15
Here, the trial court determined that Oliveira-Coutinho had
presented a prima facie case that the prosecutor had exer-
cised the State’s peremptory challenge because of the juror’s
race. The State then offered its reasons for the strike, which
the trial court determined were race neutral and persuasive.
On this basis, the trial court overruled Oliveira-Coutinho’s
Batson challenge.
[7] Once a prosecutor has offered a race-neutral explanation
for the peremptory challenges and the trial court has decided
the ultimate question of intentional discrimination, the prelim-
inary issue of whether the defendant had made a prima facie
showing is moot.16 Thus, we must determine only whether the
prosecutor’s reasons were race neutral and whether the trial
court’s final determination regarding purposeful discrimina-
tion was clearly erroneous.17
[8] The initial question whether a prosecutor’s reasons
for a peremptory challenge were race neutral is a question
of law that we review de novo.18 The question is whether
the stated reasons, on their face, were inherently discrimi-
natory.19 In making that determination, we do not consider
whether the prosecutor’s reasons are persuasive.20 Indeed,
13
Id.14
Id.15
See id.16
Id.17
Id.18
Id.19
Id.20
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Cite as 291 Neb. 294while the prosecutor’s reasons must be comprehensible, they
need not be persuasive or even plausible, if they are not inher-
ently discriminatory.21
In support of the exercise of the challenge, the State noted
it was concerned because juror B.H. had failed to immediately
respond to the question with information about her son’s crimi-
nal record and because juror B.H. did not initially remember
her disturbing the peace conviction or the background of that
charge, which gave the State pause regarding juror B.H.’s
memory and her ability to serve as a juror. Finally, the State
noted that juror B.H. had a son who had been convicted of
multiple felonies and that, in fact, another juror with a simi-
lar relationship had been struck using another of the State’s
peremptory challenges.
We conclude that these reasons, on their face, are racially
neutral. We therefore move on to the third and final step
of our analysis: whether Oliveira-Coutinho proved that the
district court clearly erred in finding no purposeful dis-
crimination by the prosecutor. In support of his position,
Oliveira-Coutinho argues that the State’s reasons were per-
haps race neutral, but were unpersuasive, because the expla-
nation ignored juror B.H.’s assertion that she felt her son was
treated fairly and had received a fair sentence and that what
had happened to him would not affect her ability to be a fair
and impartial juror.
[9] The U.S. Supreme Court has explained that the third
step of a Batson inquiry involves evaluating the prosecutor’s
credibility and that the best evidence of discriminatory intent
“‘often will be the demeanor of the attorney who exercise[d]
the challenge.’”22 Such credibility determinations lie within
the peculiar province of the trial judge and “‘in the absence
21
Id.22
Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 170 L. Ed. 2d
175 (2008).
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Cite as 291 Neb. 294of exceptional circumstances,’” require deference to the trial
court.23 As we noted in State v. Nave,24 this deference is
reflected in our standard of review.
We cannot conclude that this case is the “exceptional” case
where the trial court’s determination should be reversed. As
the State noted, another juror was challenged due to a family
member with a criminal record. Though juror B.H. did indicate
she could remain fair and impartial, it was permissible for the
State to remain skeptical, not only because of the parent-child
relationship, but because juror B.H. did not initially disclose
the conviction. In addition, the State’s reason for its concern
about juror B.H.’s memory was appropriate, as the trial was
anticipated to last 2 weeks and contain hundreds of exhibits
and many witnesses.
We conclude that the district court did not clearly err
in overruling Oliveira-Coutinho’s Batson challenge. Oliveira-
Coutinho’s first assignment of error is without merit.
2. Jury Sequestration
In his second assignment of error, Oliveira-Coutinho
assigns that the district court erred in denying his motion to
sequester the jury during the trial. His motion to sequester
the jury during deliberations was granted, and the jury was so
sequestered at that time.
(a) Standard of Review
[10] Whether a jury is to be kept together before submission
of the cause in a criminal trial is left to the discretion of the
trial court.25
(b) Analysis
[11] To warrant reversal, denial of a motion to sequester the
jury before submission of the cause must be shown to have
23
Id.24
State v. Nave, supra note 7.
25
State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
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Cite as 291 Neb. 294prejudiced the defendant.26 No such prejudice was shown in
this case.
[12] Immediately after they were sworn, the jurors here
were admonished not to discuss the case among themselves
or anyone else when court was not in session, and not to read,
view, or listen to any news reports regarding the case. Jurors
are presumed to follow their instructions unless evidence to the
contrary is shown.27
The fact that two prospective jurors admitted during voir
dire that they ignored the admonishment is not relevant to our
determination of prejudice for the simple matter that these
jurors were not chosen for the jury. Moreover, though alleged,
Oliveira-Coutinho has not shown the nature of the appar-
ent pervasive media attention or that the jurors were actually
exposed to that publicity.28
The district court did not abuse its discretion in deny-
ing Oliveira-Coutinho’s motion to sequester the jury during
trial. Oliveira-Coutinho’s second assignment of error is with-
out merit.
3. Motion to Suppress
In his third assignment of error, Oliveira-Coutinho assigns
that the district court erred in denying his motion to suppress.
Oliveira-Coutinho argues that he was unlawfully seized for
purposes of the Fourth Amendment on February 1, 2010, as
officers prepared to execute search warrants on the South 16th
Street and Park Avenue addresses. Oliveira-Coutinho therefore
contends that “any and all observations, evidence and state-
ments derived from [Oliveira-Coutinho’s] stop, warrantless
search of his person, and arrest” should be suppressed.29
26
Id.27
See State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003).
28
See State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
29
Brief for appellant at 22.
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Cite as 291 Neb. 294(a) Standard of Review
[13] In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth
Amendment, we apply a two-part standard of review.30
Regarding historical facts, we review the trial court’s findings
for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that we review
independently of the trial court’s determination.31
(b) Analysis
[14,15] Evidence obtained as the direct or indirect “fruit” of
an illegal search or seizure, “the poisonous tree,” is inadmis-
sible in a state prosecution and must be excluded.32 To deter-
mine whether the evidence is a “fruit” of the illegal search
or seizure, a court asks whether the evidence has been come
at by exploitation of the primary illegality or whether it has
instead been come at by means sufficiently distinguishable to
be purged of the primary taint.33 There are three general excep-
tions to the exclusionary rule to aid in this analysis.
[16-18] Under the “independent source doctrine,” the chal-
lenged evidence is admissible if it came from a lawful source
independent of the illegal conduct.34 Under the “attenuated
connection doctrine,” the challenged evidence is admissible
if the causal connection between the constitutional violation
and the discovery of the evidence is so attenuated as to rid
the taint.35 And under the “inevitable discovery doctrine,” the
challenged evidence is admissible if it inevitably would have
30
State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
31
Id.32
In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).
33
See id. (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9
L. Ed. 2d 441 (1963).
34
U.S. v. Reinholz, 245 F.3d 765 (8th Cir. 2001).
35
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Cite as 291 Neb. 294been discovered by lawful means without reference to the
police misconduct.36
In Oliveira-Coutinho’s brief, other than a general assertion
that “observations, evidence and statements” should be sup-
pressed, he does not explain what items require suppression.37
It is therefore difficult to analyze this assignment of error.
Before the district court, Oliveira-Coutinho argued as follows:
He was initially stopped and seized on February 1, 2010, in
violation of the Fourth Amendment; he was questioned on that
day and then placed on an ICE hold; and he eventually reestab-
lished contact with law enforcement and implicated Goncalves-
Santos in an interview on March 11.
The State eventually charged Goncalves-Santos with mur-
der, and he was put on trial. During his trial, Goncalves-Santos
decided to cooperate with the State and testify against Oliveira-
Coutinho. Oliveira-Coutinho was charged with first degree
murder, and Goncalves-Santos testified against him. Oliveira-
Coutinho apparently argues, in essence, that all of Goncalves-
Santos’ testimony should be suppressed because he, Oliveira-
Coutinho, was unlawfully seized over 2 years before.
Assuming without deciding that there was an unlawful
seizure under the Fourth Amendment, all three exceptions to
the exclusionary rule have applicability here. To begin, the
inevitable discovery doctrine is applicable. Law enforcement
questioned Goncalves-Santos at the Park Avenue address on
February 1, 2010, when executing the search warrant. In
interviewing Goncalves-Santos and searching his property,
they discovered clothing matching that worn by the persons in
the Wal-Mart surveillance video. Oliveira-Coutinho was also
connected to this surveillance video. Thus, law enforcement
would have inevitably discovered Goncalves-Santos’ involve-
ment in this matter to the extent that his involvement was
not already apparent to law enforcement prior to Oliveira-
Coutinho’s statements to that effect on March 11.
36
Id.37
See brief for appellant at 22.
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Cite as 291 Neb. 294In addition to the inevitable discovery doctrine, law enforce-
ment had an independent source regarding Goncalves-Santos’
involvement—his wife, who ultimately testified at Goncalves-
Santos’ trial that Goncalves-Santos admitted his participation
in the murders.
Finally, the evidence was also sufficiently attenuated as to
rid itself of any taint from any alleged Fourth Amendment
violation. Though Oliveira-Coutinho contends he was seized
on February 1, 2010, he was not initially held by the State on
any charges related to the Szczepanik family’s disappearance,
but instead was placed on an ICE hold by the federal govern-
ment. Between March 6 and 11, Oliveira-Coutinho contacted
an investigator in this case and spoke to him, against his
attorney’s advice, regarding Goncalves-Santos’ involvement
on March 11. Thirty-eight days elapsed between Oliveira-
Coutinho’s February 1 encounter with law enforcement and the
March 11 interview regarding Goncalves-Santos. This length
of time, the fact that Oliveira-Coutinho’s voluntary statement
led law enforcement to Goncalves-Santos, and the fact that law
enforcement had other reasons to suspect Goncalves-Santos,
lead to the conclusion that the causal connection was so atten­
uated as to remove any taint.
The district court did not err in denying Oliveira-Coutinho’s
motion to suppress. Oliveira-Coutinho’s third assignment of
error is without merit.
4. Deportation of Witnesses
In his fourth assignment of error, Oliveira-Coutinho assigns
that the district court erred in denying his motion to dis-
miss. The basis of his motion was the federal government’s
deportation of several individuals who Oliveira-Coutinho con-
tends could have provided material evidence to his defense.
Oliveira-Coutinho asserts that his Fifth Amendment due proc­
ess rights and Sixth Amendment compulsory process rights
under the U.S. Constitution, and the equivalent protections
under the Nebraska Constitution, were violated as a result of
these deportations.
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Cite as 291 Neb. 294(a) Standard of Review
[19,20] The determination of whether the procedures
afforded an individual comport with the constitutional require-
ments for procedural due process presents a question of law.38
Likewise, claimed violations of the compulsory process right
are reviewed de novo.39
(b) Analysis
The Fifth Amendment to the U.S. Constitution provides:
“No person shall . . . be deprived of life, liberty, or prop-
erty, without due process of law . . . .” Article I, § 3, of the
Nebraska Constitution provides the same protection. And the
Sixth Amendment to the U.S. Constitution provides: “In all
criminal prosecutions, the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his favor
. . . .” Similarly, Neb. Const. art. I, § 11, provides that “the
accused shall have the right . . . to have process to compel the
attendance of witnesses in his behalf.”
This right is not absolute, however. In U.S. v. Valenzuela-
Bernal,40 the U.S. Supreme Court addressed the extent of
the compulsory process right when the government deports
an individual that a defendant wishes to call as a witness.
The Court held that the “mere fact that the Government
deports [illegal-alien] witnesses is not sufficient to estab-
lish a violation of the Compulsory Process Clause of the
Sixth Amendment or the Due Process Clause of the Fifth
Amendment.”41 The Court further noted that “[s]anctions may
be imposed on the Government for deporting witnesses only
if the criminal defendant makes a plausible showing that the
testimony of the deported witnesses would have been material
and favorable to his defense, in ways not merely cumulative
38
State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
39
U.S. v. Damra, 621 F.3d 474 (6th Cir. 2010).
40
U.S. v. Valenzuela-Bernal, 458 U.S. 858, 102 S. Ct. 3440, 73 L. Ed. 2d
1193 (1982).
41
Id., 458 U.S. at 872-73.
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Cite as 291 Neb. 294to the testimony of available witnesses,”42 such that there is “a
reasonable likelihood that the testimony could have affected
the judgment of the trier of fact.”43
The U.S. Supreme Court later relied upon Valenzuela-Bernal
in its decision in Youngblood v. Arizona.44 In Youngblood,
the government intentionally destroyed evidence. Citing to
Valenzuela-Bernal and other cases, the Court held that the fail-
ure of law enforcement to preserve potentially useful evidence
was not a denial of due process, absent a showing of bad faith
on the part of the government.
Since the U.S. Supreme Court’s decision in Youngblood,
several circuit courts of appeal have addressed whether the
compulsory and due process rights of a defendant were vio-
lated where a potential witness was deported. All, save the
Fifth Circuit, have read Valenzuela-Bernal and Youngblood
together to hold that in order to show a violation of due process
or compulsory process rights, a defendant must “first make an
initial showing that the government has acted in bad faith, and,
having made that showing, must then make some plausible
showing that the testimony of the deported witness would have
been both material and favorable to his defense.”45 The Fifth
Circuit has discussed the issue, but has not yet determined
whether it would require a showing of bad faith.46
42
Id., 458 U.S. at 873.
43
Id., 458 at 874.
44
Youngblood v. Arizona, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281(1988).
45
U.S. v. Damra, supra note 39, 621 F.3d at 489-90. See, also, U.S. v. De La
Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010); U.S. v. Chaparro-Alcantara,
226 F.3d 616 (7th Cir. 2000); U.S. v. Iribe-Perez, 129 F.3d 1167 (10th
Cir. 1997); U.S. v. Dring, 930 F.2d 687 (9th Cir. 1991). See, also, State v.
Estrella, 277 Conn. 458, 893 A.3d 348 (2006).
46
U.S. v. Gonzales, 436 F.3d 560 (5th Cir. 2006). See, also, People v.
Valencia, 218 Cal. App. 3d 808, 267 Cal. Rptr. 257 (1990) (court did not
address whether showing of bad faith is required); People v. Holmes, 135
Ill. 2d 198, 552 N.E.2d 763, 142 Ill. Dec. 172 (1990) (court rejected bad
faith requirement in case involving unavailable, but not deported, witness).
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Cite as 291 Neb. 294How a defendant shows bad faith differs slightly between
circuits. In the Ninth Circuit, a defendant must show either
(1) that the government departed from normal deportation
procedures or (2) that it deported the witnesses to gain an
unfair tactical advantage.47 In the Seventh Circuit, a defendant
must show “‘“official animus”’” or a “‘“conscious effort to
suppress exculpatory evidence.”’”48 Here, the focus is on the
“Government’s knowledge when . . . it arranged for the depar-
ture of the witnesses, not on any of its subsequent conduct.”49
Also relevant, if the government interviews the witness or has
other information suggesting that he or she could offer excul-
patory evidence, the government may not deport him or her
without first giving defense counsel a chance to interview him
or her.50
[21] We agree with the circuit courts that have adopted the
above two-pronged test and conclude that a defendant must
(1) make an initial showing that the government has acted in
bad faith and (2) make a plausible showing that the testimony
of the deported witness would have been both material and
favorable to his or her defense.
Oliveira-Coutinho cannot meet either prong. He complains
about the deportation of Gonzalez-Mendez and Lourenco-
Batista. Gonzalez-Mendez, who Oliveira-Coutinho now
claims could be an alibi witness, was deported in October
2010. And Lourenco-Batista who, according to Goncalves-
Santos, participated in the murders, was deported in early
2011. But Lourenco-Batista and Oliveira-Coutinho were not
charged with the murders until September 1, 2011, after
Goncalves-Santos began cooperating with the State. Oliveira-
Coutinho did not inform the State of his alibi defense until the
fall of 2011. Regardless of which test of bad faith might be
47
U.S. v. Pena-Gutierrez, 222 F.3d 1080 (9th Cir. 2000).
48
U.S. v. Chaparro-Alcantara, supra note 45, 226 F.3d at 624.
49
See id.50
U.S. v. Leal-Del Carmen, 697 F.3d 964 (9th Cir. 2012).
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Cite as 291 Neb. 294applicable, we cannot conclude, based on this time line, that
these potential witnesses were deported in bad faith.
Oliveira-Coutinho also cannot meet his burden to show
that the witnesses would have provided material and exculpa-
tory evidence. As to his alibi, Oliveira-Coutinho apparently
contends that he was with Gonzalez-Mendez and others on
the evening of the murder. One of those individuals was
interviewed by Oliveira-Coutinho’s investigators, but did not
confirm the alibi. In addition, though Gonzalez-Mendez was
interviewed early in this investigation, he did not provide
any exculpatory information about Oliveira-Coutinho. As for
Lourenco-Batista, he was a codefendant and, had he been oth-
erwise available to testify, likely would have invoked his Fifth
Amendment right to remain silent51 or would have testified
against Oliveira-Coutinho.
The district court did not err in denying Oliveira-Coutinho’s
motion to dismiss. Oliveira-Coutinho’s fourth assignment of
error is without merit.
5. Motion for A dvance Ruling
on Evidentiary Issues
In his fifth assignment of error, Oliveira-Coutinho assigns
that the district court erred in not allowing him to cross-­
examine Goncalves-Santos regarding his competency and
credibility as a witness, including admissions he made, cer-
tain behaviors subsequent to the murders, threats against his
wife, threats against a cellmate, and other violent behaviors
such as mistreating or killing animals. In addition to cross-­
examination, Oliveira-Coutinho sought to call the cellmate,
Diaz, as a rebuttal witness, should Goncalves-Santos deny the
accusations on cross-examination.
51
See U.S. v. Iribe-Perez, supra note 45. See, also, U.S. v. Stassi, 544 F.2d
579 (2d Cir. 1976).
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[22] A trial court’s determination of the relevancy and
admissibility of evidence must be upheld in the absence of
abuse of discretion.52
(b) Analysis
Oliveira-Coutinho argues that his proposed cross-­
examination was relevant to Goncalves-Santos’ competency
under rule 601 and to his credibility under rule 607.53 He fur-
ther argues that such cross-examination was not prohibited by
limits on extrinsic evidence set forth in rule 608(2) and was
admissible as “‘reverse 404(b)’” evidence.
(i) Competency
[23] We turn first to Oliveira-Coutinho’s contention that the
matters upon which he sought to cross-examine Goncalves-
Santos were relevant to Goncalves-Santos’ competency. We
disagree. Rule 601 provides that “[e]very person is competent
to be a witness except as otherwise provided in these rules.”
Competency of a witness is an issue to be determined by the
trial court and not by the jury.54 Yet, Oliveira-Coutinho wished
to cross-examine Goncalves-Santos in an attempt to show that
Goncalves-Santos was incompetent to testify. But, in fact,
the jury could not make such a determination. In addition,
Oliveira-Coutinho did not assign that the district court erred in
finding that Goncalves-Santos was competent to testify. There
is no merit to this argument.
(ii) Credibility
Oliveira-Coutinho contends that the evidence for which he
sought to cross-examine Goncalves-Santos would be admis-
sible to impeach Goncalves-Santos’ credibility.
[24] Rule 607 states, “The credibility of a witness may be
attacked by any party, including the party calling him.” Unlike
52
State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
53
Neb. Evid. R. 607, Neb. Rev. Stat. § 27-607 (Reissue 2008)
54
See State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997).
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Cite as 291 Neb. 294competency, the credibility and weight of a witness’ testi-
mony are for the jury to determine.55 Finally, as relevant, rule
608(2) explains:
Specific instances of the conduct of a witness, for the pur-
pose of attacking or supporting his credibility, other than
conviction of crime as provided in section 27-609, may
not be proved by extrinsic evidence. They may, however,
in the discretion of the court, if probative of truthfulness
or untruthfulness be inquired into on cross-examination
of the witness (a) concerning his character for truthful-
ness or untruthfulness, or (b) concerning the charac-
ter for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined
has testified.
Though under rule 608(2), specific instances of conduct by
a witness to attack his or her credibility are not provable by
extrinsic evidence, Oliveira-Coutinho nevertheless argues that
this evidence was admissible, because it was directly relevant
to both “material issues of the case” and Goncalves-Santos’
bias “in favor of himself and against [Oliveira-Coutinho],” as
well as “Goncalves[-Santos’] attempts to threaten, intimidate
and tamper with witnesses,” which Oliveira-Coutinho refers
to as “conscious guilt.”56 Oliveira-Coutinho is correct in that
he argues that specific conduct evidence can be admissible
insofar as it is directly relevant to bias57 or to the material
issues of the case.58 But as demonstrated below, the spe-
cific conduct he seeks to admit was nevertheless irrelevant
and inadmissible.
We begin with the alleged admissions made by Goncalves-
Santos to Diaz. At trial, Goncalves-Santos testified that he
had not told anyone except his wife about the murders, denied
55
Id.56
Brief for appellant at 27-28, 32.
57
See United States v. Abel, 469 U.S. 45, 105 S. Ct. 465, 83 L. Ed. 2d 450(1984).
58
See U.S. v. Calle, 822 F.2d 1016 (11th Cir. 1987).
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Cite as 291 Neb. 294that he was unhappy with Vanderlei, and stated that Oliveira-
Coutinho told him, Goncalves-Santos, to kill the Szczepanik
family. Because Diaz had been deported and was unavail-
able to testify, Oliveira-Coutinho was permitted to introduce
portions of Diaz’ trial testimony from Goncalves-Santos’
trial in an effort to impeach Goncalves-Santos’ later testi-
mony at Oliveira-Coutinho’s trial. The introduced testimony
included Diaz’ statements that Goncalves-Santos had com-
plained Vanderlei had treated him poorly and had not paid him
well, that Goncalves-Santos said “‘he [Goncalves-Santos] did
it,’” and that Goncalves-Santos did not tell Diaz that others
were involved.
Through this testimony, Oliveira-Coutinho was permitted to
introduce Goncalves-Santos’ admissions to impeach his testi-
mony. For that reason, there is no merit to Oliveira-Coutinho’s
argument that he be allowed to impeach Goncalves-Santos with
his admissions to Diaz.
Oliveira-Coutinho also argues that he should have been
allowed to cross-examine Goncalves-Santos regarding
Goncalves-Santos’ alleged threats to kill Diaz if Diaz repeated
Goncalves-Santos’ admissions. Oliveira-Coutinho argues these
threats are relevant to show Goncalves-Santos felt “conscious
guilt” over the Szczepaniks’ murders.59
But in his testimony at Oliveira-Coutinho’s trial, Goncalves-
Santos admitted his guilt. It was therefore unnecessary to
introduce these threats, which are specific acts of misconduct
prohibited by rule 608(2), to show any conscious guilt. The
district court did not err in not allowing Oliveira-Coutinho to
cross-examine Goncalves-Santos on this point.
The district court also did not err in not allowing cross-­
examination regarding threats made by Goncalves-Santos
against his wife. These threats are not relevant to Goncalves-
Santos’ alleged bias against Oliveira-Coutinho, or to any
material issues of the case as identified by Oliveira-Coutinho
or otherwise. Nor are they relevant to Goncalves-Santos’
59
Brief for appellant at 32.
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Cite as 291 Neb. 294conscious guilt because, of course, any conscious guilt is
irrelevant where Goncalves-Santos has admitted his actual
guilt.
In addition, Oliveira-Coutinho sought to introduce evidence
of Goncalves-Santos’ certain “concerning behaviors” while
incarcerated after being arrested for the Szczepaniks’ mur-
ders.60 This evidence has no relevance to any bias on the part
of Goncalves-Santos, and its introduction would not contra-
dict Goncalves-Santos’ testimony that he killed the family at
Oliveira-Coutinho’s direction.
Oliveira-Coutinho also sought to introduce evidence showing
Goncalves-Santos’ violence toward animals. Oliveira-Coutinho
is apparently arguing that this evidence shows Goncalves-
Santos was violent, independent of any direction by Oliveira-
Coutinho. There is nothing in Goncalves-Santos’ testimony
suggesting that he had to be persuaded to kill the family or
that he was ordinarily not a violent person. In fact, Goncalves-
Santos’ testimony shows that he was a violent person. This
evidence is not relevant to show any alleged bias against
Oliveira-Coutinho.
Finally, Oliveira-Coutinho argues that Diaz’ testimony,
in which he discussed certain “concerning behaviors” of
Goncalves-Santos, was admissible under rule 404(2) as
so-called reverse 404(b) of the Federal Rules of Evidence,
relevant to show Goncalves-Santos’ consciousness of guilt.
Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Oliveira-Coutinho argues that “[i]f [Diaz’] testimony was
relevant to proving Goncalves[-Santos’] guilt at his trial, it is
60
Id. at 27.
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Cite as 291 Neb. 294inconceivable that the same evidence was not admissible in
[Oliveira-Coutinho’s] trial to show third-party guilt . . . .”61
We disagree. At his own trial, Goncalves-Santos had pled
not guilty and the State was tasked with proving his guilt
beyond a reasonable doubt. Diaz’ testimony regarding actions
of Goncalves-Santos that might have shown conscious guilt is
arguably relevant. But, as noted above, at Oliveira-Coutinho’s
trial, Goncalves-Santos admitted his guilt. It was unnecessary
to admit the evidence sought by Oliveira-Coutinho to prove
conscious guilt of a person who did not deny his guilt.
Finally, to the extent Oliveira-Coutinho argues that
Goncalves-Santos had an incentive to testify against him in
order to secure the benefit of his plea deal, we note that
the jury was informed of the plea deal and the reasons for
Goncalves-Santos’ cooperation at Oliveira-Coutinho’s trial.
In sum, the specific acts upon which Oliveira-Coutinho
sought to cross-examine Goncalves-Santos violated the prohi-
bition against such evidence set forth in rule 608(2) and were
not relevant to show Goncalves-Santos’ bias against Oliveira-
Coutinho or to rebut the material issues in the case against
Oliveira-Coutinho. The district court did not err in not allowing
Oliveira-Coutinho to cross-examine Goncalve-Santos as argued
above. There is no merit to Oliveira-Coutinho’s fifth assign-
ment of error.
6. H andwriting Expert
In his sixth assignment of error, Oliveira-Coutinho assigns
that the district court erred in admitting the testimony of
Eggleston, the State’s handwriting expert. Oliveira-Coutinho
argues that Eggleston’s testimony does not reach the standards
set forth under Daubert v. Merrell Dow Pharmaceuticals,
Inc.62 and Schafersman v. Agland Coop.63
61
Id. at 32.
62
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 4.
63
Schafersman v. Agland Coop, supra note 4.
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[25] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.64
(b) Analysis
In support of his contention that Eggleston’s testimony was
unreliable and thus inadmissible, Oliveira-Coutinho cites to the
decision of the U.S. District Court for the District of Nebraska
in U.S. v. Rutherford.65 There, the court concluded that the
“handwriting analysis testimony on unique identification lacks
both the validity and reliability of other forensic evidence,
such as fingerprint identification or DNA evidence.”66
Since that decision, several federal circuit courts of appeal
have addressed the same basic issue. Each court presented
with the issue has concluded that even subsequent to the
U.S. Supreme Court’s decision in Daubert and Kuhmo Tire
Co. v. Carmichael,67 such handwriting identification evidence
can be valid and reliable and therefore admissible.68 As one
federal court has noted, there is “broad discretion and flex-
ibility given to trial judges to determine how and to what
degree these factors should be used to evaluate the reliability
of expert testimony [which] dictate[s] a case-by-case review
rather than a general pronouncement that . . . handwriting
analysis is reliable.”69
An examination of the record on Oliveira-Coutinho’s
motion shows that Eggleston, who was accredited in his field,
64
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
65
U.S. v. Rutherford, 104 F. Supp. 2d 1190 (D. Neb. 2000).
66
Id. at 1193.
67
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed.
2d 238 (1999).
68
U.S. v. Prime, 431 F.3d 1147 (9th Cir. 2005); U.S. v. Crisp, 324 F.3d
261 (4th Cir. 2003); U.S. v. Mooney, 315 F.3d 54 (1st Cir. 2002); U.S. v.
Jolivet, 224 F.3d 902 (8th Cir. 2000). See, also, U.S. v. Paul, 175 F.3d 906(11th Cir. 1999).
69
U.S. v. Prime, supra note 68 at 1152.
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Cite as 291 Neb. 294testified at Oliveira-Coutinho’s Daubert/Schafersman hear-
ing that the theory that no two individuals write identically
is generally accepted and has been subjected to tests that
have been printed in peer review journals. Eggleston further
explained his methodology and acknowledged that the prob-
ability statistics in his field were different than that for DNA
or chemical analysis.
In denying the motion to exclude Eggleston’s testimony, the
district court noted the above and also noted the development
of the law since Rutherford had been decided. Given the com-
prehensive examination of Eggleston and his field, we cannot
conclude that the district court abused its discretion in allow-
ing Eggleston to testify. Oliveira-Coutinho’s sixth assignment
of error is without merit.
7. A libi Evidence
In his seventh assignment of error, Oliveira-Coutinho assigns
that the district court erred in not allowing him to admit evi-
dence of his alibi witness. In particular, Oliveira-Coutinho
sought to introduce evidence, through cross-examination of
Goncalves-Santos, that he and Gonzalez-Mendez were involved
in a relationship and that Oliveira-Coutinho spent many nights
with Gonzalez-Mendez at Gonzalez-Mendez’ home. In addi-
tion, Oliveira-Coutinho sought to introduce evidence that he
had looked for Gonzalez-Mendez following the latter’s depor-
tation but that the search was unsuccessful.
(a) Standard of Review
A trial court’s determination of the relevancy and admis-
sibility of evidence must be upheld in the absence of abuse
of discretion.70
(b) Analysis
[26] Under the Due Process Clause of the 14th Amendment
and the Compulsory Process and Confrontation Clauses of
the 6th Amendment, a criminal defendant is guaranteed a
70
State v. Sellers, supra note 52.
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Cite as 291 Neb. 294meaningful opportunity to present a complete defense.71
But “‘[t]he accused does not have an unfettered right to
offer testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.’”72 The evi-
dence sought to be introduced here is irrelevant and there-
fore inadmissible.
Oliveira-Coutinho argues that admitting evidence of his
relationship with Gonzalez-Mendez provides foundational sup-
port for his alibi. However, Oliveira-Coutinho did not present
any alibi evidence at trial. Moreover, any evidence regarding
the nature of his relationship with Gonzalez-Mendez has no
bearing on Oliveira-Coutinho’s whereabouts on December 17,
2009. In other words, the fact that Oliveira-Coutinho had a
relationship with Gonzalez-Mendez or spent many nights with
him does not show that Oliveira-Coutinho spent the night of
the murders with Gonzalez-Mendez. Evidence regarding their
relationship is simply irrelevant.
Also irrelevant are Oliveira-Coutinho’s ultimately futile
efforts to locate Gonzalez-Mendez. The jury was aware that
Gonzalez-Mendez had been deported. Oliveira-Coutinho’s
witness was allowed to testify that it was possible to look
for a witness who had been deported to Mexico. But the
exact means undertaken by Oliveira-Coutinho to look for
Gonzalez-Mendez has no bearing on Oliveira-Coutinho’s
whereabouts on December 17, 2009, and would accom-
plish nothing more than inviting the jury to speculate as to
Gonzalez-Mendez’ testimony had he been called to testify.
Such speculation would have been prejudicial and not in any
way probative.
The district court did not abuse its discretion in finding this
evidence inadmissible. Oliveira-Coutinho’s seventh assignment
of error is without merit.
71
See State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013), cert. denied
___ U.S. ___, 134 S. Ct. 1899, 188 L. Ed. 2d 930 (2014).
72
Id. at 996, 840 N.W.2d at 519.
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Cite as 291 Neb. 2948. R eenactment Evidence
In his eighth assignment of error, Oliveira-Coutinho assigns
that the district court erred in not admitting evidence of a
­reenactment of the murders.
(a) Standard of Review
The standard for reviewing the admissibility of expert testi-
mony is abuse of discretion.73
(b) Analysis
[27] This court has held that evidence relating to an illustra-
tive experiment is admissible if a competent person conducted
the experiment, an apparatus of suitable kind and condition
was utilized, and the experiment was conducted fairly and
honestly.74 It is not essential that conditions existing at the
time of the experiment be identical with those existing at the
time of the occurrence, but the conditions should be essentially
similar, that is, similar in all those factors necessary to make
the comparison a fair and accurate one.75 The lack of similarity
regarding the nonessential factors then goes to the weight of
the evidence rather than to its admissibility.76
Oliveira-Coutinho argues that the experiment was rele-
vant not to recreate the hangings, but to rebut Goncalves-
Santos’ version of events. Oliveira-Coutinho sought to
impeach Goncalves-Santos’ testimony about how the hangings
occurred, suggesting that his reenactment evidence demon-
strated that if the rope had been tied in the manner in which
Goncalves-Santos testified, the victims would not have been
suspended. He directs us to U.S. v. Jackson,77 which holds
that “where the purpose of the experiment is not to recreate
73
State v. McClain, supra note 64.
74
Perry Lumber Co. v. Durable Servs., 266 Neb. 517, 667 N.W.2d 194(2003).
75
Id.76
Id.77
U.S. v. Jackson, 479 F.3d 485, 489 (7th Cir. 2007).
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Cite as 291 Neb. 294events but simply to rebut or falsify the opposing party’s
sweeping hypothesis, the substantial similarity requirement is
relaxed.” In contrast, the State argues that Oliveira-Coutinho’s
“experimental evidence was a veiled attempt to recreate the
events under controlled conditions favorable to him and the
substantial similarity requirement is not relaxed.”78 Moreover,
the State argues that even if the requirement is relaxed, it is
not “eviscerated.”79
Oliveira-Coutinho argues that we should relax the “substan-
tial similarity” requirement, because the purpose of his reenact-
ment is to rebut Goncalves-Santos’ testimony. But even if the
requirement is relaxed, we agree that the reenactment is not
sufficiently similar to Goncalves-Santos’ version of events to
offer even appropriate rebuttal to those events.
First, Goncalves-Santos testified that Jaqueline was pushed
down the stairs, while the investigator in the reenactment
walked down the stairs. And while Goncalves-Santos’ tes-
timony could be read to suggest that Christopher was sus-
pended after he was pushed down the stairs, the testimony
was clear that Jacqueline landed on the floor. Moreover,
Jaqueline’s height and weight were unknown, as were the
exact kind of rope used and the exact location of where the
rope was tied. Finally, the State’s pathologist expert witness
testified that it was not necessary to be suspended in order to
be asphyxiated.
The district court did not err in refusing to admit Oliveira-
Coutinho’s reenactment evidence. Oliveira-Coutinho’s eighth
assignment of error is without merit.
9. A dmission of Family Photograph
In his ninth assignment of error, Oliveira-Coutinho assigns
that the district court erred in admitting a photograph of
the family. Oliveira-Coutinho contends that its admission was
more prejudicial than probative.
78
Brief for appellee at 60.
79
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[28] The admission of photographs into evidence rests
largely within the discretion of the trial court, which must
determine their relevancy and weigh their probative value
against their possible prejudicial effect.80
(b) Analysis
[29] In a homicide prosecution, photographs of a victim
may be received into evidence for purposes of identification,
to show the condition of the body or the nature and extent of
wounds and injuries to it, and to establish malice or intent.81
We have also noted that a photograph which is admitted at
trial depicting a victim while he or she was alive is not offered
for a proper purpose.82
The district court in this case noted that neither Vanderlei’s
nor Jaqueline’s body was ever found; furthermore, Christopher’s
remains were not visually identifiable. Under these circum-
stances, this case is distinguishable from our case law finding
the admission of such a photograph to be erroneous. Because
the photograph was helpful in identifying the victims, it was
not an abuse of discretion to admit it. Oliveira-Coutinho’s
ninth assignment of error is without merit.
10. Motion for New Trial
In his 10th assignment of error, Oliveira-Coutinho assigns
that the district court erred in denying his motion for new trial
on the basis of newly discovered evidence in the form of the
affidavit from Thoan.
(a) Standard of Review
[30,31] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
80
State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
81
Id.82
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Cite as 291 Neb. 294discretion is shown, the trial court’s determination will not be
disturbed.83 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.84
(b) Analysis
Thoan’s statement is discussed in more detail above.
Generally, Thoan avers that Goncalves-Santos told him that
Oliveira-Coutinho was not involved in the murder of the
Szczepanik family.
As an initial matter, Thoan’s affidavit is not wholly incon-
sistent with Goncalves-Santos’ testimony. As the district court
noted, Goncalves-Santos testified that Oliveira-Coutinho was
not in the room when the family was killed. Especially con-
sidering that both Thoan and Goncalves-Santos were speaking
English when it was the first language of neither, the accuracy
of Thoan’s recitation of any conversation with Goncalves-
Santos is questionable.
[32] In addition, at most, Thoan’s affidavit tells a differ-
ent story from what Goncalves-Santos testified to at trial. We
have held that a new trial will not ordinarily be granted for
newly discovered evidence which, when produced, will merely
impeach or discredit a witness who testified at trial.85 We have
further noted that to justify a new trial, newly discovered
evidence must involve something other than the credibility of
the witness who testified at trial.86 In the end, this was all that
Thoan’s story did.
The district court did not abuse its discretion in denying
Oliveira-Coutinho’s motion for new trial. There is no merit to
Oliveira-Coutinho’s 10th assignment of error.
83
State v. Faust, 269 Neb. 749, 696 N.W.2d 420 (2005).
84
Id.85
State v. Wycoff, 180 Neb. 799, 146 N.W.2d 69 (1966).
86
State v. Pierce and Wells, 215 Neb. 512, 340 N.W.2d 122 (1983).
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Cite as 291 Neb. 29411. Opening Statements
In his 11th assignment of error, Oliveira-Coutinho assigned
that the district court erred in denying his motion for mis-
trial on the basis of the State’s opening statements. Oliveira-
Coutinho contends that the State vouched for the testimony of
the State’s primary witness and also that the State suggested
that the district court was also vouching for Goncalves-Santos
when the State noted that the district court would eventually
sentence Goncalves-Santos for his role in the murders.
(a) Standard of Review
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.87
(b) Analysis
[33-35] When considering a claim of prosecutorial miscon-
duct, we first consider whether the prosecutor’s acts constitute
misconduct.88 A prosecutor’s conduct that does not mislead
and unduly influence the jury is not misconduct.89 But if we
conclude that a prosecutor’s acts were misconduct, we next
consider whether the misconduct prejudiced the defendant’s
right to a fair trial.90
[36-38] Prosecutorial misconduct prejudices a defendant’s
right to a fair trial when the misconduct so infected the trial
that the resulting conviction violates due process.91 Whether
prosecutorial misconduct is prejudicial depends largely on
the context of the trial as a whole.92 In determining whether
the conduct prejudiced the defendant’s right to a fair trial,
87
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
88
State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
89
Id.90
Id.91
Id.92
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Cite as 291 Neb. 294we consider 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) the strength of the evidence supporting
the conviction.93
[39] We note that Oliveira-Coutinho has likely waived
any argument that the State erred in directly vouching for
Goncalves-Santos when it failed to object to those statements
at the time they were made. Failure to make a timely objec-
tion waives the right to assert prejudicial error on appeal.94
However, we conclude that on appeal, Oliveira-Coutinho has
preserved his argument that the State suggested the district
court was also vouching for Goncalves-Santos.
We need not determine whether the State’s action amounted
to misconduct, because even if it did, such misconduct was
not prejudicial to Oliveira-Coutinho’s right to a fair trial. The
challenged remarks were made during a portion of the State’s
opening statements in this case. Such statements were the
first remarks in what would be an 11-day trial, complete with
nearly 50 witnesses and hundreds of exhibits.
While the jury was not immediately instructed to disregard
the prosecutor’s statements, it was eventually instructed spe-
cifically as follows:
There has been testimony from . . . Goncalves-Santos,
a claimed accomplice of [Oliveira-Coutinho]. You should
closely examine his testimony for any possible motive
he might have to testify falsely. You should hesitate
to convict [Oliveira-Coutinho] if you decide that . . .
Goncalves-Santos testified falsely about an important
matter and that there is no other evidence to support his
testimony.
93
Id.94
State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
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Cite as 291 Neb. 294In any event, you should convict [Oliveira-Coutinho]
only if the evidence satisfies you beyond a reasonable
doubt of his guilt.
In addition, the jury was instructed by the court that the
court was “not permitted to comment on the evidence, and I
have not intentionally done so. If it appears to you that I have
commented on the evidence, during either the trial or the giv-
ing of these instructions, you must disregard such comment
entirely.” The jury was also instructed that “[s]tatements, argu-
ments, and questions of the lawyers for the State and [Oliveira-
Coutinho are not evidence].”
The comments of the prosecutor during his opening state-
ments were isolated in the overall context of the trial, and
the jury was instructed specifically on Goncalves-Santos’ tes-
timony as well as on issues relating to arguments of counsel
versus evidence presented. Finally, the strength of the evi-
dence overall was such that any alleged misconduct in opening
statements was not prejudicial to Oliveira-Coutinho’s right to a
fair trial. There is no merit to Oliveira-Coutinho’s 11th assign-
ment of error.
12. Testimony of Forensic Dentist
and P hotographs of
Skeletal R emains
In his 12th and final assignment of error, Oliveira-Coutinho
assigns that the district court erred when it did not grant his
motions for mistrial or, in the alternative, his motions to strike
the testimony of Finnegan, the State’s forensic anthropologist,
and Filippi, the State’s forensic dentist. Oliveira-Coutinho con-
tends that the testimony of each expert was repetitive, cumula-
tive, and prejudicial and, further, that the State misrepresented
to the court the actions taken by Filippi during Christopher’s
autopsy. In addition, Oliveira-Coutinho assigns that the dis-
trict court erred in admitting exhibits Nos. 553, 558, 566, 569,
and 571, which were photographs of Christopher’s skeletal
remains. Oliveira-Coutinho contends that these photographs
were prejudicial.
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Cite as 291 Neb. 294(a) Standard of Review
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.95
The admission of photographs into evidence rests largely
within the discretion of the trial court, which must determine
their relevancy and weigh their probative value against their
possible prejudicial effect.96
(b) Analysis
We turn first to Oliveira-Coutinho’s assertions regarding the
testimony of the anthropologist and the dentist. He contends
that these witnesses purportedly testified with respect to iden-
tification but, in fact, Christopher’s remains were identified
through DNA testing and that therefore, the testimony of each
expert was unnecessary.
We disagree that the district court abused its discretion in
not granting a mistrial or, in the alternative, striking the testi-
mony of these witnesses. Each witness testified as to the identi-
fication of the skeletal remains. Finnegan testified as to the age
of the person to whom the remains belonged based upon his
examination of the bones. Filippi testified as to the age of the
person to whom the remains belonged based upon his examina-
tion of the teeth.
Moreover, both testified to the procedures followed to
extract DNA from the humerus in order to test the DNA for
identification purposes. While DNA evidence might be the
most common way to identify remains, such does not make
any means of additional identification inadmissible. As the
State pointed out at trial, even DNA evidence is stated in terms
of probability.
Because Filippi, like Finnegan, testified as to the identi-
fication of Christopher’s remains, we cannot conclude the
State mischaracterized Filippi’s testimony in order to get the
95
State v. Dixon, supra note 87.
96
State v. Faust, supra note 80.
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Cite as 291 Neb. 294challenged photographs admitted. The district court did not
abuse its discretion in denying Oliveira-Coutinho’s motions to
strike and for mistrial.
We turn next to Oliveira-Coutinho’s argument regarding the
photographs of Christopher’s skeletal remains, exhibits Nos.
553, 558, 566, 569, and 571.
[40,41] As noted earlier, in a homicide prosecution, a court
may admit into evidence photographs of a victim for identi-
fication, to show the condition of the body or the nature and
extent of wounds and injuries to it, and to establish malice or
intent.97 The State is allowed to present a coherent picture of
the facts of the crimes charged, and it may generally choose its
evidence in so doing.98 Rule 40399 does not require a separate
purpose for every photograph, and it requires a court to pro-
hibit cumulative evidence only if it substantially outweighs the
probative value of the evidence.100
First, these photographs were not cumulative. Each was
used by the expert witnesses in explaining their examinations
and identification processes. In addition, we have examined
the photographs and do not find them to be more prejudicial
than probative.
The district court did not err in admitting the photographs
and in failing to strike the testimony of the experts or in grant-
ing a motion for mistrial. Oliveira-Coutinho’s final assignment
of error is without merit.
V. CONCLUSION
Oliveira-Coutinho’s convictions and sentences are affirmed.
A ffirmed.
Wright, J., not participating.
97
State v. Dubray, supra note 88; State v. Faust, supra note 80.
98
State v. Dubray, supra note 88.
99
Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).
100
Id.