State v. Stricklin ( 2015 )

Nebraska Advance Sheets
542 290 NEBRASKA REPORTS
the bar for similar services.36 We conclude that the trial court
did not abuse its discretion by ordering Wade to pay attorney
fees of $4,250.
CONCLUSION
We conclude that the court abused its discretion by order-
ing the parties to alternately claim the dependency exemption
for their minor child, but we otherwise affirm the decree. We
modify the decree to award solely to Wade the dependency
exemption attributable to the parties’ daughter.
Affirmed as modified.
36
Id.
State of Nebraska, appellee, v.
Derrick U. Stricklin, appellant.
___ N.W.2d ___
Filed April 3, 2015. No. S-14-182.
1. Trial: Joinder: Appeal and Error. A trial court’s ruling on a motion for consoli-
dation of prosecutions properly joinable will not be disturbed on appeal absent an
abuse of discretion.
2. Pleadings: Parties: Judgments: Appeal and Error. A denial of a motion to
sever will not be reversed unless clear prejudice and an abuse of discretion
are shown.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
5. Jury Instructions: Appeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
6. Motions for New Trial: Appeal and Error. A trial court’s order denying a
motion for new trial is reviewed for an abuse of discretion.
7. Criminal Law: Trial. In criminal prosecutions, the withdrawal of a rest in a trial
on the merits is within the discretion of the trial court.
8. Trial: Joinder. There is no constitutional right to a separate trial.
Nebraska Advance Sheets
STATE v. STRICKLIN 543
Cite as 290 Neb. 5429. Trial: Joinder: Proof: Appeal and Error. The burden is on the party chal-
lenging a joint trial to demonstrate how and in what manner he or she was
prejudiced.
10. Trial: Joinder: Indictments and Informations. The propriety of a joint trial
involves two questions: whether the consolidation is proper because the defend­
ants could have been joined in the same indictment or information, and whether
there was a right to severance because the defendants or the State would be
prejudiced by an otherwise proper consolidation of the prosecutions for trial.
11. Trial: Joinder. Consolidation is proper if the offenses are part of a factu-
ally related transaction or series of events in which both of the defend­
ants participated.
12. Rules of Evidence. Under Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue
2008), all relevant evidence is admissible unless there is some specific constitu-
tional or statutory reason to exclude such evidence.
13. Trial: Evidence. Evidence which is not relevant is not admissible.
14. Evidence: Words and Phrases. Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it would be without
the evidence.
15. Trial: Joinder. A defendant is not considered prejudiced by a joinder where
the evidence relating to both offenses would be admissible in a trial of either
offense separately.
16. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made
by the declarant while testifying at trial or hearing, offered in evidence to prove
the truth of the matter asserted.
17. Rules of Evidence: Rules of the Supreme Court: Hearsay. Hearsay is not
admissible except as provided by the rules of evidence or by other rules adopted
by the statutes of the State of Nebraska or by the discovery rules of the Nebraska
Supreme Court.
18. Rules of Evidence: Hearsay. When an out-of-court statement relates the content
of another out-of-court statement, there must be an independent hearsay excep-
tion for each statement.
19. Confessions: Rules of Evidence. For a statement against penal interest, the
question under Neb. Evid. R. 804(2)(c), Neb. Rev. Stat. § 27-804(2)(c) (Reissue
2008), is always whether the statement was sufficiently against the declarant’s
penal interest that a reasonable person in the declarant’s position would not have
made the statement unless he or she believed it to be true.
20. ____: ____. As an initial matter, to qualify as a statement against penal interest
under Neb. Evid. R. 804(2)(c), Neb. Rev. Stat. § 27-804(2)(c) (Reissue 2008), the
statement must be self-inculpatory.
21. Confessions: Rules of Evidence: Words and Phrases. A “statement” within
the meaning of Neb. Evid. R. 804(2)(c), Neb. Rev. Stat. § 27-804(2)(c) (Reissue
2008), is a specific individual statement that a proponent offers into evidence
rather than the entire narrative of which the statement is a part.
22. Rules of Evidence: Hearsay. Individual remarks under examination pursuant to
the hearsay exception of Neb. Evid. R. 804(2)(c), Neb. Rev. Stat. § 27-804(2)(c)
Nebraska Advance Sheets
544 290 NEBRASKA REPORTS
(Reissue 2008), must meet the test of whether the particular remark at issue meets
the standard set forth in the rule.
23. ____: ____. In determining whether a statement is admissible under the residual
hearsay exception to the hearsay rule, a court considers five factors: a state-
ment’s trustworthiness, the materiality of the statement, the probative impor-
tance of the statement, the interests of justice, and whether notice was given to
an opponent.
24. ____: ____. In determining admissibility under the residual hearsay exception, a
court must examine the circumstances surrounding the declaration in issue and
may consider a variety of factors affecting the trustworthiness of a statement. A
court may compare the declaration to the closest hearsay exception as well as
consider a variety of other factors affecting trustworthiness, such as the nature
of the statement, that is, whether the statement is oral or written; whether a
declarant had a motive to speak truthfully or untruthfully, which may involve
an examination of the declarant’s partiality and the relationship between the
declarant and the witness; whether the statement was made under oath; whether
the statement was spontaneous or in response to a leading question or ques-
tions; whether a declarant was subject to cross-examination when the statement
was made; and whether a declarant has subsequently reaffirmed or recanted
the statement.
25. Rules of Evidence: Hearsay: Appeal and Error. Because of the factors a trial
court must weigh in deciding whether to admit evidence under the residual hear-
say exception, an appellate court applies an abuse of discretion standard to review
hearsay rulings under this exception.
26. Trial: Testimony: Appeal and Error. The scope of cross-examination of a wit-
ness rests largely in the discretion of the trial court, and its ruling will be upheld
on appeal unless there is an abuse of discretion.
27. Rules of Evidence: Witnesses: Prior Convictions. When impeaching a witness
pursuant to Neb. Evid. R. 609, Neb. Rev. Stat. § 27-609 (Reissue 2008), after the
conviction is established, the inquiry must end there, and it is improper to inquire
into the nature of the crime, the details of the offense, or the time spent in prison
as a result thereof.
28. Rules of Evidence: Witnesses. Neb. Evid. R. 608(2), Neb. Rev. Stat. § 27-608(2)
(Reissue 2008), permits questioning during cross-examination only on specific
instances of conduct not resulting in a criminal conviction.
29. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue
2008), evidence may be excluded if its probative value is substantially out-
weighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury.
30. Jury Instructions: Appeal and Error. The failure to object to instructions after
they have been submitted to counsel for review will preclude raising an objec-
tion on appeal, unless there is a plain error indicative of a probable miscarriage
of justice.
31. Trial: Motions for Mistrial. When a party has knowledge during trial of irregu-
larity or misconduct, the party must timely assert his or her right to a mistrial.
32. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error.
A party who fails to make a timely motion for mistrial based on prosecutorial
Nebraska Advance Sheets
STATE v. STRICKLIN 545
Cite as 290 Neb. 542misconduct waives the right to assert on appeal that the court erred in not declar-
ing a mistrial due to such prosecutorial misconduct.
33. Rules of Evidence: Jurors: Affidavits. Neb. Evid. R. 606(2), Neb. Rev. Stat.
§ 27-606(2) (Reissue 2008), does not allow a juror’s affidavit to impeach a ver-
dict on the basis of jury motives, methods, misunderstanding, thought processes,
or discussions during deliberations.
34. Jury Misconduct: Trial: Appeal and Error. When an allegation of jury mis-
conduct is made and is supported by a showing which tends to prove that serious
misconduct occurred, the trial court should conduct an evidentiary hearing to
determine whether the alleged misconduct actually occurred. If it occurred, the
trial court must then determine whether it was prejudicial to the extent that the
defendant was denied a fair trial. If the trial court determines that the misconduct
did not occur or that it was not prejudicial, adequate findings are to be made so
that the determination may be reviewed.
35. Witnesses: Juror Misconduct: Appeal and Error. An appellate court reviews
the trial court’s determinations of witness credibility and historical fact for clear
error and reviews de novo the trial court’s ultimate determination whether the
defendant was prejudiced by juror misconduct.
36. Criminal Law: Jury Misconduct: Proof. A criminal defendant claiming jury
misconduct bears the burden of proving, by a preponderance of the evidence, (1)
the existence of jury misconduct and (2) that such misconduct was prejudicial to
the extent that the defendant was denied a fair trial.
37. Criminal Law: Juror Misconduct: Presumptions: Proof. In a criminal case,
misconduct involving an improper communication between a nonjuror and a juror
gives rise to a rebuttable presumption of prejudice which the State has the burden
to overcome.
38. Jury Misconduct. Whether prejudice resulted from jury misconduct must be
resolved by the trial court’s drawing reasonable inferences as to the effect of the
extraneous information on an average juror.
39. Trial: Evidence: Appeal and Error. Among factors traditionally considered in
determining whether to allow a party to reopen a case to introduce additional evi-
dence are (1) the reason for the failure to introduce the evidence, i.e., counsel’s
inadvertence, a party’s calculated risk or tactic, or the court’s mistake; (2) the
admissibility and materiality of the new evidence to the proponent’s case; (3) the
diligence exercised by the requesting party in producing the evidence before his
or her case closed; (4) the time or stage of the proceedings at which the motion
is made; and (5) whether the new evidence would unfairly surprise or unfairly
prejudice the opponent.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Jeremy C. Jorgenson for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Nebraska Advance Sheets
546 290 NEBRASKA REPORTS
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ., and Moore, Chief Judge.
Cassel, J.
I. INTRODUCTION
This case is Derrick U. Stricklin’s direct appeal from mul-
tiple felony convictions, including two convictions for first
degree murder. Stricklin’s convictions arose from the shoot-
ing deaths of Carlos Morales and Bernardo Noriega during a
planned drug transaction. The State alleged that Stricklin com-
mitted the crimes with an accomplice, Terrell E. Newman, and
the two were tried together. Stricklin’s assignments of error
relate to the consolidation of his and Newman’s trials, the
exclusion of statements made by a confidential informant, the
scope of his cross-examination of the State’s primary witness,
the instructions given to the jury, prosecutorial misconduct, and
juror misconduct. Finding no merit to his claims, we affirm his
convictions and sentences.
II. BACKGROUND
1. Shootings
Morales operated an automobile body shop in Omaha,
Nebraska. On the morning of December 2, 2012, Morales’
fiance dropped him off at the shop and returned home. At
approximately 2:15 p.m., she returned to the shop to pick up
Morales in order to take him to their son’s birthday party.
Morales’ fiance arrived at the shop, opened the shop’s
door, and called for Morales. When he did not respond, she
climbed the stairs to the shop’s office and saw Morales lying
on his stomach with “blood coming out” of him. She observed
another man lying face down, but she did not know who the
man was. She called the 911 emergency dispatch center, but
the operator was unable to understand her. She observed a
man outside the shop, and the man was able to give the shop’s
address to the 911 operator.
Police officers identified the men in the office of Morales’
shop as Morales and Noriega. Both men were deceased upon
the officers’ arrival, and autopsies revealed that both men died
of gunshot wounds to the head.
Nebraska Advance Sheets
STATE v. STRICKLIN 547
Cite as 290 Neb. 542While investigating the shootings, officers interviewed Jose
Herrera-Gutierrez, who claimed to have been present during the
incident. Although Herrera-Gutierrez did not know the names
of the shooters, he had recognized them from prior occasions
at Morales’ shop. He knew that one of the shooters had a
brother who was potentially a business partner of Morales’ and
that the other shooter was associated with a green Volkswagen
Beetle that Herrera-Gutierrez had seen at Morales’ shop. Based
upon the information provided by Herrera-Gutierrez, officers
compiled photographic lineups containing photographs of
Stricklin and Newman, and Herrera-Gutierrez identified them
as the shooters.
2. Trial
Stricklin was charged by information with seven counts,
including two counts of first degree murder, attempted first
degree murder, three counts of use of a deadly weapon to
commit a felony, and possession of a deadly weapon by a pro-
hibited person. Newman was charged with the same offenses.
Upon the State’s motion, Stricklin’s and Newman’s trials were
consolidated into a joint trial.
(a) Herrera-Gutierrez’ Testimony
The events of December 2, 2012, revolved around a drug
transaction planned to occur at Morales’ shop. Herrera-
Gutierrez testified that Morales had asked him if he could get
Morales some cocaine. Herrera-Gutierrez and Noriega were
supposed to deliver the cocaine to the shop.
At approximately 11:30 a.m., Herrera-Gutierrez and Noriega
left a restaurant to go to Morales’ shop. Upon their arrival,
Herrera-Gutierrez exited the vehicle and telephoned Morales
to unlock the shop’s door. Morales opened the door and came
outside. Herrera-Gutierrez saw Noriega linger in the vehicle
for a moment, grab something, and put it underneath his arm.
Herrera-Gutierrez testified that the thing Noriega had grabbed
was “that cocaine.”
The three proceeded into Morales’ shop and up the stairs to
the shop’s office. Herrera-Gutierrez testified that when they
arrived in the office, two black males were already present.
Nebraska Advance Sheets
548 290 NEBRASKA REPORTS
Herrera-Gutierrez identified them as Stricklin and Newman.
And he testified that he had recognized them from prior visits
to the shop. He had seen Stricklin approximately four times
at the shop, and he had seen Newman approximately three
times at the shop. However, he had never learned their names,
because Morales had not mentioned any names.
Upon entering the office, Noriega gave the cocaine to
Morales and Morales set the cocaine on a table. Newman
approached the table, and he and Morales opened the cocaine.
Although Stricklin had a “see-through bag” containing wrin-
kled bills, Newman told Morales that he was going to get
the money.
Newman turned around as if he was going to leave the
office. But rather than leaving, he turned back around with a
gun in his hand. Newman pointed the gun at them, and Herrera-
Gutierrez saw that Stricklin also had a gun. Newman instructed
Morales to tell Herrera-Gutierrez and Noriega to lie down.
Herrera-Gutierrez and Noriega lay face down on the ground.
Newman tied Herrera-Gutierrez’ wrists, and a piece of plastic
was wrapped around his face. Although Herrera-Gutierrez was
able to breathe, he was unable to see if Stricklin and Newman
were doing the same to Noriega.
Herrera-Gutierrez heard Stricklin and Newman instruct
Morales to lie down as well. He heard Morales say, “No, you
respect me, my house is your second house,” and Newman
reply, “I’m sorry, [Morales], business is business.” Herrera-
Gutierrez felt Morales lie down close to him. Herrera-Gutierrez
was then lifted up a “little bit” and a plastic bag was placed
over his head. Right after the bag was placed over his head, he
heard “boom, boom, boom” and someone screaming. He testi-
fied that he heard two or three gunshots.
Herrera-Gutierrez started to feel like he was “asphyxiating.”
After he heard the shots, he heard a voice that he thought was
Noriega, “lamenting, like AH, AH, AH.” He then heard one
more shot.
Someone grabbed Herrera-Gutierrez, the bag was taken
off his head, and his hands were untied. He was dropped
back to the ground, where he stayed and did not try to move.
He heard footsteps, as if someone was walking quickly, and
Nebraska Advance Sheets
STATE v. STRICKLIN 549
Cite as 290 Neb. 542then heard someone turn around, as if the person had forgot-
ten something and returned to grab it. After approximately 5
minutes, Herrera-Gutierrez turned around and saw a “circle”
of blood where Morales was lying. He called out to Morales,
but Morales made no response. Herrera-Gutierrez ran out of
the office, walked down a nearby street, and was eventually
picked up by a passing driver. After being dropped off, he trav-
eled to the home of Noriega’s family in order to tell them what
had happened.
(b) Verdicts and Sentences
The jury returned verdicts finding Stricklin guilty of two
counts of first degree murder, three counts of use of a
deadly weapon to commit a felony, attempted intentional
manslaughter, and possession of a deadly weapon by a pro-
hibited person.
Stricklin was sentenced to life imprisonment for each of the
first degree murder convictions, 15 to 25 years’ imprisonment
for each of the three use of a deadly weapon convictions, 20
months’ to 5 years’ imprisonment for the attempted intentional
manslaughter conviction, and 15 to 25 years’ imprisonment for
the possession of a deadly weapon by a prohibited person con-
viction. Each sentence was ordered to run consecutively.
3. Appeal
Stricklin filed a timely notice of appeal—an appeal which is
taken directly to this court.1
III. ASSIGNMENTS OF ERROR
Stricklin assigns, restated and reordered, that the district
court erred in (1) consolidating his and Newman’s trials,
overruling his motion to sever, and permitting the State to
use exhibit 288; (2) excluding the statements of a confiden-
tial informant; (3) prohibiting him from questioning Herrera-
Gutierrez concerning his prior drug dealing; (4) failing to
include all relevant and mandatory language in the instruc-
tions given to the jury; (5) overruling his motion for new
1
See Neb. Rev. Stat. § 24-1106(1) (Reissue 2008).
Nebraska Advance Sheets
550 290 NEBRASKA REPORTS
trial on the basis of juror misconduct; and (6) overruling his
motion to reopen the evidence. Stricklin further asserts that
the State committed prosecutorial misconduct during its clos-
ing argument.
IV. STANDARD OF REVIEW
[1,2] A trial court’s ruling on a motion for consolidation of
prosecutions properly joinable will not be disturbed on appeal
absent an abuse of discretion.2 A denial of a motion to sever
will not be reversed unless clear prejudice and an abuse of
discretion are shown.3
[3,4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.4 Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion.5
[5] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.6
[6] A trial court’s order denying a motion for new trial is
reviewed for an abuse of discretion.7
[7] In criminal prosecutions, the withdrawal of a rest in a
trial on the merits is within the discretion of the trial court.8
V. ANALYSIS
We address Stricklin’s assignments of error in the order in
which they occurred before the district court, beginning with
the consolidation of his and Newman’s trials.
2
State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
3
Id.4
State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013).
5
Id.6
State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
7
Id.8
State v. Bossow, 274 Neb. 836, 744 N.W.2d 43 (2008).
Nebraska Advance Sheets
STATE v. STRICKLIN 551
Cite as 290 Neb. 5421. Joint Trial
[8,9] Stricklin contends that the district court erred in grant-
ing the State’s motion to consolidate his and Newman’s trials
and in overruling his subsequent motion to sever. The law
governing separate and joint trials is well settled. There is
no constitutional right to a separate trial.9 The right is statu-
tory and depends upon a showing that prejudice will result
from a joint trial.10 The burden is on the party challenging a
joint trial to demonstrate how and in what manner he or she
was prejudiced.11
[10] The propriety of a joint trial involves two questions:
whether the consolidation is proper because the defendants
could have been joined in the same indictment or information,
and whether there was a right to severance because the defend­
ants or the State would be prejudiced by an otherwise proper
consolidation of the prosecutions for trial.12
[11] As to the first question, the district court specifically
found that Stricklin and Newman could have been charged in
a single indictment or information. We find no error in this
conclusion. The charges against Stricklin and Newman were
identical and arose from their alleged involvement in the shoot-
ing deaths of Morales and Noriega. Consolidation is proper if
the offenses are part of a factually related transaction or series
of events in which both of the defendants participated.13
As to prejudice, Stricklin’s arguments arise from the admis-
sion of certain evidence at trial, specifically Newman’s cell
phone records and exhibit 288. Cell phone records played a
significant role at trial in corroborating Herrera-Gutierrez’ tes-
timony and in tying Stricklin and Newman to Morales’ shop
on December 2, 2012. Newman’s cell phone records showed
multiple calls with Morales and Stricklin on December 2.
And exhibit 288 showed six calls received by Newman from
9
Foster, supra note 2.
10
Id. See Neb. Rev. Stat. § 29-2002 (Reissue 2008).
11
Foster, supra note 2.
12
Id.
13
Id.
Nebraska Advance Sheets
552 290 NEBRASKA REPORTS
11:42 a.m. to 12:36 p.m. and indicated that the cell tower used
to service Newman’s cell phones for the calls was located in
the immediate vicinity of Morales’ shop.
Stricklin asserts that he was prejudiced by the admission
of Newman’s cell phone records and exhibit 288, because this
evidence would not have been admissible against him in a
separate trial. We disagree.
[12-14] Both the evidence of Newman’s cell phone records
and exhibit 288 would have been relevant, admissible evidence
in a separate trial against Stricklin. Under Neb. Evid. R. 402,
Neb. Rev. Stat. § 27-402 (Reissue 2008), all relevant evidence
is admissible unless there is some specific constitutional or
statutory reason to exclude such evidence.14 Evidence which
is not relevant is not admissible.15 Relevant evidence means
evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without
the evidence.16
The State’s theory of the case was that Stricklin and
Newman committed the crimes together. And the State pre-
sented the testimony of Herrera-Gutierrez identifying Stricklin
and Newman as the shooters. Newman’s cell phone records
and exhibit 288 served to bolster the State’s theory and to
corroborate Herrera-Gutierrez’ identification of Stricklin and
Newman. Newman’s cell phone records showed that Newman
was in communication with both Morales and Stricklin on
the day of the shootings. And from exhibit 288, the jury
could properly infer that Newman was in some proximity
to Morales’ shop at the time that he received the six calls.
Because Newman was Stricklin’s alleged accomplice, this evi-
dence further supported the State’s theory and was relevant to
the issue of Stricklin’s guilt.
[15] Because the evidence of Newman’s cell phone records
and exhibit 288 would have been admissible against Stricklin
14
Blue Valley Co-op v. National Farmers Org., 257 Neb. 751, 600 N.W.2d
786 (1999).
15
See rule 402.
16
Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2008).
Nebraska Advance Sheets
STATE v. STRICKLIN 553
Cite as 290 Neb. 542in a separate trial, Stricklin has failed to show that the con-
solidation of his and Newman’s trials caused him prejudice. A
defendant is not considered prejudiced by a joinder where the
evidence relating to both offenses would be admissible in a
trial of either offense separately.17
Stricklin further claims that exhibit 288 was a demonstra-
tive exhibit for which a limiting instruction was required,
and he attempts to compare this case to State v. Pangborn.18
In Pangborn, we determined that the trial court abused its
discretion in permitting the jury to use a demonstrative
exhibit during deliberations without providing a limiting
instruction.19
Contrary to Stricklin’s assertion, exhibit 288 was not admit-
ted as a demonstrative exhibit, but as substantive evidence.
Foundation was provided for the calls and the location of the
cell tower shown on the exhibit, and the exhibit was admitted
into evidence. Thus, no limiting instruction was required. This
assignment of error is without merit.
2. Confidential Informant
Stricklin assigns that the district court erred in excluding
evidence of statements made by a confidential informant. And
he argues that the exclusion of the statements violated his con-
stitutional right to present a complete defense.
(a) Facts
At a hearing on the defendants’ motions in limine, a detec-
tive testified as to certain statements made by an informant
who had spoken to Morales approximately 1 week before the
shootings. According to the detective, the informant stated that
Morales was seeking to obtain two firearms, because he was
having problems with two black males. The informant stated
that one of the male’s nicknames was “Sip.”
According to the detective, the informant was not sure of the
origin of Morales’ problems with the males. But the informant
17
State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
18
State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).
19
See id.Nebraska Advance Sheets
554 290 NEBRASKA REPORTS
believed that Morales’ problems possibly arose from a “drug
tax” for selling drugs in the neighborhood. However, Morales
never told the informant exactly what the tax was for. The
informant further stated that he did not provide Morales with
any firearms.
Additionally, the detective testified that he met with the
informant on two occasions and that he showed the inform­
ant photographic lineups containing photographs of Stricklin
and Newman. However, the informant did not identify either
Stricklin or Newman as being “Sip.”
The district court excluded the evidence of the confidential
informant’s statements on the basis that the evidence contained
two levels of hearsay: (1) Morales’ statements to the informant
and (2) the informant’s statements to the detective. And the
court concluded that Morales’ statements did not fall under
either the exception for statements against interest20 or the
residual hearsay exception.21
(b) Resolution
[16,17] Our case law and rules of evidence provide that
hearsay is a statement, other than one made by the declarant
while testifying at trial or hearing, offered in evidence to prove
the truth of the matter asserted.22 Hearsay is not admissible
except as provided by the rules of evidence or by other rules
adopted by the statutes of the State of Nebraska or by the dis-
covery rules of the Nebraska Supreme Court.23
[18] Stricklin does not contest the district court’s conclusion
that the evidence of the confidential informant’s statements
contained two levels of hearsay. When an out-of-court state-
ment relates the content of another out-of-court statement,
there must be an independent hearsay exception for each
20
Neb. Evid. R. 804(2)(c), Neb. Rev. Stat. § 27-804(2)(c) (Reissue 2008).
21
Rule 804(2)(e).
22
See, Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2008);
State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
23
See, Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2008); State v.
Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
Nebraska Advance Sheets
STATE v. STRICKLIN 555
Cite as 290 Neb. 542statement.24 We discuss each of the hearsay exceptions consid-
ered by the district court.
(i) Statement Against Interest
Rule 804(2)(c) provides that when the declarant is unavail-
able as a witness, a statement may be admitted when it,
at the time of its making . . . so far tended to subject
him to civil or criminal liability . . . that a reasonable
man in his position would not have made the statement
unless he believed it to be true. A statement tending to
expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborat-
ing circumstances clearly indicate the trustworthiness of
the statement.
[19] For a statement against penal interest, the question
under rule 804(2)(c) is always whether the statement was suf-
ficiently against the declarant’s penal interest that a reasonable
person in the declarant’s position would not have made the
statement unless he or she believed it to be true.25
[20] None of Morales’ statements were sufficiently against
his penal interest so as to fall within the purview of rule
804(2)(c). Morales had stated that he sought to obtain two
firearms, that he was having trouble with two black males,
that one of the males was called Sip, that the males wanted
him to pay a tax, and that he owed “a lot” of money. None of
these statements tended to expose Morales to criminal liability.
Morales had not disclosed the basis for the tax or admitted
to selling drugs; the informant only assumed that the tax was
for selling drugs. Further, the informant stated that he did not
provide Morales with any guns. As an initial matter, to qualify
as a statement against penal interest under rule 804(2)(c), the
statement must be self-inculpatory.26
[21,22] Stricklin argues that the investigation into the shoot-
ings revealed that Morales was in fact selling drugs. But
24
See, Neb. Evid. R. 805, Neb. Rev. Stat. § 27-805 (Reissue 2008); State v.
Neujahr, 248 Neb. 965, 540 N.W.2d 566 (1995).
25
See State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013).
26
See id.Nebraska Advance Sheets
556 290 NEBRASKA REPORTS
in considering whether a statement qualifies as a statement
against penal interest, a court must constrain its analysis to
the individual statement at issue.27 A “statement” within the
meaning of rule 804(2)(c) is a specific individual statement
that a proponent offers into evidence rather than the entire
narrative of which the statement is a part.28 Individual remarks
under examination pursuant to the hearsay exception of rule
804(2)(c) must meet the test of whether the particular remark at
issue meets the standard set forth in the rule.29 Morales’ state-
ments, standing alone, did not tend to expose him to criminal
liability. Thus, his statements did not fall within the purview of
rule 804(2)(c).
(ii) Residual Hearsay Exception
Under rule 804(2)(e), when the declarant is unavailable as a
witness, a hearsay statement “not specifically covered” by any
other hearsay exception may still be admitted if the statement
has “equivalent circumstantial guarantees of trustworthiness”
and the court determines that
(i) the statement is offered as evidence of a material
fact, (ii) the statement is more probative on the point for
which it is offered than any other evidence which the pro-
ponent can procure through reasonable efforts, and (iii)
the general purposes of these rules and the interests of
justice will best be served by admission of the statement
into evidence.
Further, the proponent of the statement must notify the adverse
party of his or her intent to offer the statement and of the par-
ticulars of the statement, including the name and address of
the declarant.30
[23] We have stated that in determining whether a statement
is admissible under the residual exception to the hearsay rule,
a court considers five factors: a statement’s trustworthiness,
the materiality of the statement, the probative importance of
27
See id.28
See id.29
See id.30
See rule 804(2)(e).
Nebraska Advance Sheets
STATE v. STRICKLIN 557
Cite as 290 Neb. 542the statement, the interests of justice, and whether notice was
given to an opponent.31
[24] Moreover, in determining admissibility under the
residual hearsay exception, a court must examine the cir-
cumstances surrounding the declaration in issue and may
consider a variety of factors affecting the trustworthiness of
a statement.32 A court may compare the declaration to the
closest hearsay exception as well as consider a variety of
other factors affecting trustworthiness, such as the nature of
the statement, that is, whether the statement is oral or writ-
ten; whether a declarant had a motive to speak truthfully or
untruthfully, which may involve an examination of the declar-
ant’s partiality and the relationship between the declarant
and the witness; whether the statement was made under oath;
whether the statement was spontaneous or in response to a
leading question or questions; whether a declarant was sub-
ject to cross-examination when the statement was made; and
whether a declarant has subsequently reaffirmed or recanted
the statement.33
[25] Because of the factors a trial court must weigh in
deciding whether to admit evidence under the residual hearsay
exception, an appellate court applies an abuse of discretion
standard to review hearsay rulings under this exception.34
Using these factors, we find no abuse of discretion in the
district court’s conclusion that Morales’ statements were not
admissible under the residual hearsay exception. Morales’
statements did not exhibit similar guarantees of trustworthi-
ness as a statement against penal interest, because his state-
ments did not incriminate him in any wrongdoing. As to other
factors affecting trustworthiness, Morales’ statements were
oral, the circumstances of the statements in seeking to obtain
illegal firearms did not necessarily motivate Morales to speak
truthfully, the statements were not made under oath, Morales
31
See State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
32
Phillips, supra note 25.
33
Id.
34
Epp, supra note 31.
Nebraska Advance Sheets
558 290 NEBRASKA REPORTS
was not subject to cross-examination, and there is no evidence
that Morales subsequently reaffirmed the statements.
We further consider the probative value of Morales’ state-
ments in addition to their trustworthiness. Stricklin asserts that
Morales’ statements proved that two other black males had a
motive to kill Morales. However, Morales’ statements did not
prove that Stricklin and Newman were innocent of the crimes.
And his statements were not evidence of third-party guilt. The
statements established only that Morales was having problems
with persons other than Stricklin and Newman.
The above factors demonstrate that Morales’ statements
failed to exhibit sufficient guarantees of trustworthiness in
order to be admitted under the residual hearsay exception.
Because Morales’ statements were inadmissible hearsay, we
find no error in the exclusion of the evidence of the confiden-
tial informant’s statements under the hearsay rule.
(iii) Complete Defense
Stricklin relies on Holmes v. South Carolina35 for the asser-
tion that the exclusion of the confidential informant’s state-
ments violated his constitutional right to present a complete
defense. In Holmes, the U.S. Supreme Court held that a
defend­ant’s right to present a complete defense was violated
when the trial court used an arbitrary rule to exclude evidence
of third-party guilt.
However, in State v. Phillips,36 we addressed a similar argu-
ment and concluded that the exclusion of a hearsay statement
under the hearsay rule did not violate a defendant’s right to
present a complete defense. In the case at bar, the evidence of
the confidential informant’s statements was properly excluded
under the hearsay rule. Thus, Stricklin’s right to present a
complete defense was not violated.
35
Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d
503 (2006).
36
See Phillips, supra note 25.
Nebraska Advance Sheets
STATE v. STRICKLIN 559
Cite as 290 Neb. 5423. Cross-Examination of
Herrera-Gutierrez
Stricklin assigns that the district court abused its discretion
in limiting the scope of his cross-examination of Herrera-
Gutierrez. He contends that he should have been permitted
to question Herrera-Gutierrez regarding his gang affiliation,
his knowledge of the confidential informant, and his his-
tory of drug trafficking, including the circumstances of a
2002 conviction.
(a) Facts
Before Herrera-Gutierrez testified, the State moved to pre-
vent Stricklin and Newman from asking any questions regard-
ing Herrera-Gutierrez’ membership in a gang and, specifically,
his affiliation with “MS-13.” The State further sought to pre-
vent any questions regarding Herrera-Gutierrez’ knowledge
of the confidential informant. The district court sustained the
State’s motion as to the informant and as to Herrera-Gutierrez’
affiliation with “MS-13.” But it permitted the defendants to
make a general inquiry into his membership in a gang.
And during cross-examination, Newman’s counsel asked
Herrera-Gutierrez, “You’re pretty familiar with the sale of
drugs. Is that fair to say?” Herrera-Gutierrez responded, “I
don’t think so because if it was that way, I would have a
nice house, cars, but I didn’t have money to pay my rent.”
Newman’s counsel then asked, “You went to federal prison for
it, didn’t you?” The State objected, and the district court deter-
mined that the form of the question was improper.
Newman’s counsel made an offer of proof, in which
Stricklin joined, that Herrera-Gutierrez had been indicted
by a federal court in 2002, had signed a plea agreement as
to one count of knowingly and intentionally distributing less
than 50 grams of methamphetamine, and had pled guilty. The
district court explained that Herrera-Gutierrez could be ques-
tioned regarding the prior conviction and that if he denied
it, the record of conviction could be offered. However, the
court determined that he could not be asked any questions
regarding the circumstances of the conviction. And it further
Nebraska Advance Sheets
560 290 NEBRASKA REPORTS
provided that any questions regarding the sale of drugs were
to be limited to the individuals and locations involved in
this case.
(b) Resolution
Stricklin’s assertions regarding Herrera-Gutierrez’ affili-
ation with a gang and his knowledge of the confidential
inform­ ant are without merit. There was no indication that
Herrera-Gutierrez was a member of “MS-13.” Further, the
district court permitted the defendants to ask general questions
as to Herrera-Gutierrez’ membership in a gang, and neither
defend­ant chose to do so. As to Herrera-Gutierrez’ knowledge
of the confidential informant, the court correctly concluded
that Herrera-Gutierrez could provide no testimony that would
overcome the exclusion of the confidential informant’s state-
ments under the hearsay rule.
[26] As to the scope of cross-examination, we find no abuse
of discretion in the limitation of questions regarding Herrera-
Gutierrez’ history of drug trafficking and his 2002 conviction.
The scope of cross-examination of a witness rests largely in
the discretion of the trial court, and its ruling will be upheld on
appeal unless there is an abuse of discretion.37
[27] Evidence of the circumstances of Herrera-Gutierrez’
2002 conviction was inadmissible under Neb. Evid. R. 609,
Neb. Rev. Stat. § 27-609 (Reissue 2008). That rule permits
the offer of evidence of a witness’ having committed a crime
punishable by death or imprisonment of more than 1 year, or
a crime which involved dishonesty or false statement regard-
less of the punishment, provided that not more than 10 years
have elapsed since the date of such conviction or of the release
of the witness from confinement, whichever is the later date.
But once having established the conviction, the inquiry must
end there, and it is improper to inquire into the nature of the
crime, the details of the offense, or the time spent in prison as
a result thereof.38
37
State v. Poe, 276 Neb. 258, 754 N.W.2d 393 (2008).
38
See, State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014); State
v. Johnson, 226 Neb. 618, 413 N.W.2d 897 (1987).
Nebraska Advance Sheets
STATE v. STRICKLIN 561
Cite as 290 Neb. 542[28] As to Herrera-Gutierrez’ prior history of drug traffick-
ing, Stricklin was authorized to inquire into specific instances
of conduct not resulting in conviction under Neb. Evid. R.
608(2), Neb. Rev. Stat. § 27-608(2) (Reissue 2008). There
appears to have been some confusion regarding the interplay
between rules 608(2) and 609, and we have not previously
addressed the issue. However, several federal courts have
arrived at a uniform conclusion. They hold that the federal
equivalent of rule 608(2) applies only to specific instances
of conduct that were not the basis of a criminal conviction.
Evidence relating to a conviction is treated solely under the
federal equivalent of rule 609.39 Because rules 608(2) and 609
are substantially similar to their federal counterparts, we adopt
the federal courts’ conclusion.40 Rule 608(2) permits question-
ing during cross-examination only on specific instances of
conduct not resulting in a criminal conviction.
[29] Moreover, rule 608(2) conditions inquiry into specific
instances of conduct upon the trial court’s discretion. And
under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue
2008), evidence may be excluded if its probative value is sub-
stantially outweighed by the danger of unfair prejudice, confu-
sion of the issues, or misleading the jury.41 In the case at bar,
the district court permitted inquiry into any incidents of prior
drug trafficking involving the locations and individuals in this
case. But the court determined that any other instances of drug
trafficking were too remote for cross-examination. We find no
abuse of discretion in this determination. This assignment of
error is without merit.
4. Jury Instructions
Stricklin contends that instructions Nos. 5 and 6 omitted
key and vital language in instructing the jury on the ele-
ments of the charged offenses. Specifically, he asserts that the
39
See, U.S. v. Osazuwa, 564 F.3d 1169 (9th Cir. 2009); U.S. v. Lightfoot,
483 F.3d 876 (8th Cir. 2007); U.S. v. Parker, 133 F.3d 322 (5th Cir. 1998);
Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir. 1991).
40
See Pangborn, supra note 18.
41
State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
Nebraska Advance Sheets
562 290 NEBRASKA REPORTS
instructions failed to charge the jury as to the requirement that
the defend­ant intentionally used a deadly weapon to commit
the crime, as to attempted robbery, and as to death as a natural
and continuous result of the defendant’s acts. He further claims
that the omission of such language caused the jury confusion,
as evidenced by a letter sent to the trial judge during delibera-
tions. Because only instruction No. 6 pertained to Stricklin, we
restrict our analysis to that instruction.
First, there is no indication that instruction No. 6 caused the
jury confusion. The letter espoused by Stricklin in his appellate
brief does not appear within the record on appeal.
[30] Second, Stricklin failed to object to the district court’s
jury instructions at trial. The failure to object to instructions
after they have been submitted to counsel for review will pre-
clude raising an objection on appeal, unless there is a plain
error indicative of a probable miscarriage of justice.42
Instruction No. 6 contained no plain error. The jury was
instructed on the felony murder theory of first degree murder,
and the intentional use of a deadly weapon is not an element of
felony murder.43 While such intentional use is an element of the
offense of use of a deadly weapon to commit a felony, instruc-
tion No. 6 charged the jury on all of the necessary elements of
that offense.
Further, there was no need to instruct the jury as to death
as a natural and continuous result of the defendant’s acts. The
comment to NJI2d Crim. 3.5 provides that “[i]n the normal
case there will be no issue regarding causation and no instruc-
tion on proximate cause need be given.” In the case before us,
there was no dispute that Morales’ and Noriega’s deaths were
caused by the gunshot wounds sustained during the robbery at
Morales’ shop.
And there was no need to instruct the jury as to attempted
robbery. Based upon the evidence received at trial, the jury
could determine either that Stricklin and Newman were the
two black males who had committed the robbery and killed
Morales and Noriega, or that they were not. There was no issue
42
State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).
43
See NJI2d Crim. 3.5.
Nebraska Advance Sheets
STATE v. STRICKLIN 563
Cite as 290 Neb. 542as to whether the robbery forming the basis for felony murder
actually occurred. This assignment of error is without merit.
5. Prosecutorial Misconduct
Stricklin assigns that the State committed prosecutorial mis-
conduct during its closing argument. During its argument,
the State emphasized the multiple calls between Stricklin and
Newman on the morning of December 2, 2012, and the lack of
calls between the two after 11:13 a.m.:
So they’re calling back and forth from 9:26 in the
morning until 11:13. And in between there on Newman’s
records, you’ll see his calls with [Morales]. At 11:13
. . . Stricklin has no more calls. From 11:13 until 12:34,
he has no more calls. And the call that he wants you
to believe he’s traveling while it’s being made, that
call wasn’t answered at 12:34. Why are there no more
calls? The two of them are together. And in my mind,
. . . Stricklin turned his phone off. He had no incoming or
outgoing calls at all between 11:13 and 12:34.
[31,32] Stricklin objected to the State’s comments, and the
district court overruled the objection. However, he did not
move for a mistrial. When a party has knowledge during trial
of irregularity or misconduct, the party must timely assert his
or her right to a mistrial.44 A party who fails to make a timely
motion for mistrial based on prosecutorial misconduct waives
the right to assert on appeal that the court erred in not declar-
ing a mistrial due to such prosecutorial misconduct.45 Stricklin
has waived any error resulting from the State’s comments due
to his failure to move for mistrial.46 This assignment of error is
without merit.
6. New Trial
Stricklin assigns that the district court erred in overruling
his motion for new trial on the basis of juror misconduct. His
arguments relate both to the evidence received by the court
44
Robinson, supra note 22.
45
Id.
46
See id.
Nebraska Advance Sheets
564 290 NEBRASKA REPORTS
and to the court’s ultimate conclusion that he was not preju-
diced by juror misconduct.
(a) Facts
After submission of the verdicts, Stricklin moved for a new
trial and attached an affidavit from one of the jurors. In the
affidavit, the juror stated that he had made a telephone call
to his brother after the first day of deliberations and before a
verdict had been reached. During the conversation, the juror’s
brother revealed that the juror’s family had a connection to the
defendants. The affidavit provided, in relevant part:
4. When the phone call was placed, I was the only per-
son on the jury at that time that wanted to vote not guilty.
5. The purpose for having a discussion with [my
brother] about the deliberations was two-fold:
a. First, at some point late in the trial . . . I realized that
I recognized people in the audience who were familiar to
me, then subsequently realized that I knew both of the
defendants and my family has family relationships with
them. In fact, at some point I learned that . . . Newman
had an altercation with my father . . . and injured his
shoulder in the past. . . .
b. Second, I felt that I was being pressured by the other
jurors to change my vote to guilty and felt that I was in
a moral dilemma because I didn’t think that the State had
proven their case. I discussed the fact that I wasn’t sure
how long I could hold the other jurors off and maintain
my position of not guilty.
6. During the deliberations, the other jurors persuaded
me to change my vote to guilty primarily because the
defendants did not testify and attempt to clear their names.
7. On October 10, 2013[,] I returned to the delib-
erations room with the other jurors and changed my vote
to guilty.
A hearing was conducted, and the juror testified that on the
third or fourth day of trial, he had recognized a person in the
audience that he knew from “growing up.” The juror spoke
with his brother after the first day of the jury’s deliberations.
The juror told his brother that he was serving on a jury for
Nebraska Advance Sheets
STATE v. STRICKLIN 565
Cite as 290 Neb. 542a murder trial. Although the juror did not inform his brother
of Stricklin’s or Newman’s name, his brother knew about the
trial and explained that he knew Stricklin and Newman. The
juror’s brother told the juror that Stricklin and Newman had
known their father from growing up together. Although the
juror’s brother and father were not his biological family, the
juror testified that he considered them as such.
As to the juror’s knowledge of Stricklin and Newman, the
juror confirmed that prior to the conversation with his brother,
he had not made a connection between himself, his family, and
either of the defendants. And he testified that he had never
met Stricklin or Newman and that he had not known who they
were. Additionally, the juror indicated that his brother did not
inform him that Newman and their father had a negative his-
tory or relationship. And his brother did not tell the juror that
Newman and their father had ever been involved in a physi-
cal altercation.
The juror also testified as to his vote, and he confirmed that
he had discussed his desire to vote not guilty with his brother.
The juror told his brother that he was the only member of the
jury who wanted to vote not guilty and that he did not know
what he was going to do.
At the hearing, the district court excluded certain portions
of the juror’s affidavit on the basis that they impermissibly
revealed the juror’s mental processes under Neb. Evid. R.
606(2), Neb. Rev. Stat. § 27-606(2) (Reissue 2008). However,
in its subsequent written order, the court stated that the por-
tions were excluded because they were misleading.
Additionally, the district court received an affidavit from the
presiding juror, stating that no outside or personal information
regarding either Stricklin or Newman was brought to the jury’s
attention during deliberations.
The district court overruled Stricklin’s motion for new trial.
The court agreed that the juror had committed misconduct in
communicating with his brother during deliberations; however,
it concluded that no prejudice resulted from the misconduct.
And it further rejected the defendants’ assertion that the juror
had committed additional misconduct in failing to reveal his
family connection with the defendants.
Nebraska Advance Sheets
566 290 NEBRASKA REPORTS
(b) Resolution
(i) Evidence
Stricklin’s arguments as to the evidence considered by the
district court pertain to the stricken portions of the juror’s affi-
davit. The court excluded all portions of the affidavit relating
to the juror’s vote, the jury’s deliberations, the juror’s knowl-
edge of Stricklin and Newman, and the altercation between the
juror’s father and Newman. And during the juror’s testimony,
it further prevented the defendants from inquiring into whether
the juror believed that the State had failed to meet its burden
of proof, whether the juror had been experiencing a “moral
dilemma,” and whether the jury had considered the defendants’
failure to testify.
We find no prejudicial error in the exclusion of the above
evidence. The admissibility of evidence concerning the valid-
ity of a jury’s verdict is governed by rule 606(2), which
provides:
Upon an inquiry into the validity of a verdict or indict-
ment, a juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations or
to the effect of anything upon his or any other juror’s
mind or emotions as influencing him to assent to or dis-
sent from the verdict or indictment or concerning his
mental processes in connection therewith, except that a
juror may testify on the question whether extraneous prej-
udicial information was improperly brought to the jury’s
attention or whether any outside influence was improperly
brought to bear upon any juror. Nor may his affidavit or
evidence of any statement by him indicating an effect of
this kind be received for these purposes.
[33] Additionally, we have explained that no evidence may
be received concerning the effect of any statement upon a
juror’s mind, its influence upon the juror, or the mental proc­
esses of a juror.47 Rule 606(2) does not allow a juror’s affidavit
to impeach a verdict on the basis of jury motives, methods,
47
See State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).
Nebraska Advance Sheets
STATE v. STRICKLIN 567
Cite as 290 Neb. 542misunderstanding, thought processes, or discussions during
deliberations.48
The juror’s statements as to his desire to vote not guilty,
pressure from the other jurors to change his vote, the juror’s
“moral dilemma,” and the jury’s reliance upon the defendants’
failure to testify fell directly within the purview of rule 606(2).
These statements revealed the juror’s mental processes and
attempted to impeach the jury’s verdicts on the basis of its
motives, methods, and discussions during deliberations. As
such, the statements were inadmissible and could not have
been considered by the district court. And the questions posed
to the juror during his testimony similarly attempted to elicit
such improper information.
Stricklin argues that the district court’s exclusion of the
above statements, particularly the jury’s reliance upon the
defendants’ failure to testify, violated the court’s duty to under-
take a full investigation into the allegations of juror miscon-
duct. And he cites the U.S. Court of Appeals for the Fifth
Circuit’s holding in United States v. McKinney49 that when jury
misconduct is alleged in a motion for new trial, the trial judge
must conduct a full investigation to ascertain whether jury mis-
conduct actually occurred and, if it occurred, the judge must
determine whether or not it was prejudicial.
[34] We have held that when an allegation of jury mis-
conduct is made and is supported by a showing which tends
to prove that serious misconduct occurred, the trial court
should conduct an evidentiary hearing to determine whether
the alleged misconduct actually occurred. If it occurred, the
trial court must then determine whether it was prejudicial to
the extent that the defendant was denied a fair trial. If the trial
court determines that the misconduct did not occur or that it
was not prejudicial, adequate findings are to be made so that
the determination may be reviewed.50
48
See id.49
United States v. McKinney, 429 F.2d 1019 (5th Cir. 1970).
50
State v. Arnold, 253 Neb. 789, 572 N.W.2d 74 (1998).
Nebraska Advance Sheets
568 290 NEBRASKA REPORTS
However, this duty to hold an evidentiary hearing does not
extend into matters which are barred from inquiry under rule
606(2). And the jury’s consideration of the defendants’ failure
to testify was clearly barred from inquiry under that rule.51
The district court permitted the juror to be examined as to the
nature of the alleged misconduct and the extent of the extrane-
ous information that he received. We see no violation of the
court’s duty to conduct an evidentiary hearing.
As to the statements in the affidavit regarding the juror’s
knowledge of Stricklin and Newman and the altercation
between Newman and the juror’s father, the exclusion of the
statements did not cause Stricklin prejudice. At the hearing,
the defendants were permitted to question the juror as to his
conversation with his brother, his family’s relationship with
the defendants, his knowledge of the defendants, and whether
he had been informed of any negative history or altercation
involving his father and Newman.
Finally, we find no error in the district court’s receipt of the
affidavit of the presiding juror. The affidavit merely denied
that extraneous information was brought to the jury’s attention
during deliberations. Rule 606(2) permits a juror to provide
evidence on the limited question of “whether extraneous preju-
dicial information was improperly brought to the jury’s atten-
tion or whether any outside influence was improperly brought
to bear upon any juror.”
(ii) Misconduct
[35] Stricklin also challenges the district court’s ultimate
conclusion that he was not prejudiced by juror misconduct.
We review the trial court’s determinations of witness credibil-
ity and historical fact for clear error and review de novo the
trial court’s ultimate determination whether the defendant was
prejudiced by juror misconduct.52
51
See, U.S. v. Kelley, 461 F.3d 817 (6th Cir. 2006); U.S. v. Rodriquez, 116
F.3d 1225 (8th Cir. 1997).
52
See, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010); State v.
Podrazo, 21 Neb. App. 489, 840 N.W.2d 898 (2013).
Nebraska Advance Sheets
STATE v. STRICKLIN 569
Cite as 290 Neb. 542[36,37] A criminal defendant claiming jury misconduct bears
the burden of proving, by a preponderance of the evidence,
(1) the existence of jury misconduct and (2) that such mis-
conduct was prejudicial to the extent that the defendant was
denied a fair trial.53 In a criminal case, misconduct involving an
improper communication between a nonjuror and a juror gives
rise to a rebuttable presumption of prejudice which the State
has the burden to overcome.54
The record establishes that the juror committed miscon-
duct in communicating with his brother during deliberations.
The juror testified that he called his brother during delib-
erations and discussed the status of his vote and the other
jurors’ votes prior to the submission of the verdicts. This was
clear misconduct.
[38] However, we agree with the district court that Stricklin
was not prejudiced by the extraneous information received
by the juror during the telephone call to his brother. Whether
prejudice resulted from jury misconduct must be resolved
by the trial court’s drawing reasonable inferences as to the
effect of the extraneous information on an average juror.55 The
test to determine whether extraneous material was prejudicial
looks to the possible effect of the extraneous material on an
average juror’s deliberative process.56
The extraneous information received by the juror would
not have affected an average juror’s deliberative process. The
district court determined that the juror had testified credibly
that his brother informed him only that his father and the
defendants had a neutral acquaintance. The juror confirmed
that his brother did not tell him that his father and Newman
had a negative history or relationship or that his father and
Newman had been involved in a physical altercation. We agree
with the district court that such knowledge of a neutral family
53
Thorpe, supra note 52.
54
Id.
55
Id.
56
State v. Harrison, 264 Neb. 727, 651 N.W.2d 571 (2002).
Nebraska Advance Sheets
570 290 NEBRASKA REPORTS
acquaintance would not motivate an average juror to change
his vote from not guilty to guilty.
Moreover, the jury was instructed to determine the facts
based solely upon the evidence presented at trial and to disre-
gard any personal knowledge. And the affidavit of the presid-
ing juror established that no extraneous information was pre-
sented to the other jurors during deliberations. Based upon the
nature of the extraneous information received by the juror, the
limitation of that information to the juror, and the instruction
to disregard personal knowledge, we conclude that the juror’s
misconduct did not prejudice Stricklin and deprive him of a
fair trial.
Stricklin claims that in addition to communicating with a
nonjuror, the juror committed misconduct in failing to reveal
his family connection to the defendants prior to the submis-
sion of the verdicts. However, this claim similarly fails for
lack of prejudice. As previously discussed, the district court
determined that the juror had testified credibly that his brother
revealed only a neutral family acquaintance with the defend­
ants. And the juror testified that he did not personally know
the defendants and that he never knew who they were. Thus,
assuming that the juror committed misconduct in failing to
reveal his family connection, Stricklin failed to show that such
a remote connection prevented the juror from being impartial.
This assignment of error is without merit.
7. Withdrawal of R est
Stricklin contends that the district court erred in overruling
his motion to withdraw his rest and to submit additional evi-
dence on the issue of juror misconduct. After the hearing on his
motion for new trial, Stricklin sought to introduce an affidavit
from the juror’s brother that provided:
When [the juror] called me the first day of deliberations,
it was clear that he knew that our family knows the
Defendants. He wasn’t honest when he said at the Motion
for New Trial that he didn’t really know the Defendants.
He told me that he didn’t recognize them until he recog-
nized people in the audience.
Nebraska Advance Sheets
STATE v. STRICKLIN 571
Cite as 290 Neb. 542The district court overruled the motion to withdraw rest and
excluded the affidavit. On appeal, Stricklin contends that the
relevant factors weighed in favor of reopening the evidence
and receiving the affidavit.
[39] Among factors traditionally considered in determining
whether to allow a party to reopen a case to introduce addi-
tional evidence are (1) the reason for the failure to introduce
the evidence, i.e., counsel’s inadvertence, a party’s calculated
risk or tactic, or the court’s mistake; (2) the admissibility and
materiality of the new evidence to the proponent’s case; (3) the
diligence exercised by the requesting party in producing the
evidence before his or her case closed; (4) the time or stage of
the proceedings at which the motion is made; and (5) whether
the new evidence would unfairly surprise or unfairly prejudice
the opponent.57
The district court considered the above factors, and it deter-
mined that the defendants had not been diligent in offering
the affidavit of the juror’s brother. The brother was known to
the defendants prior to the hearing, but they did not produce
his statements.
And the district court further observed that receiving the
affidavit would result in unfair surprise or unfair prejudice.
At the hearing on the motion for new trial, the witnesses had
been sequestered and, thus, they were not present for each
other’s testimony. The brother’s affidavit “skirt[ed] the hear-
ing’s sequestration order,” because it attempted to impeach the
testimony given by the juror. If the brother had been present
at the hearing, he would not have been allowed to hear and
respond to the juror’s testimony.
Based upon the district court’s analysis of the relevant fac-
tors, we see no abuse of discretion in the denial of Stricklin’s
motion to withdraw his rest and to reopen the evidence. This
assignment of error is without merit.
VI. CONCLUSION
We find no merit to Stricklin’s assertions that the district
court erred in consolidating his and Newman’s trials, excluding
57
Myhra v. Myhra, 16 Neb. App. 920, 756 N.W.2d 528 (2008).
Nebraska Advance Sheets
572 290 NEBRASKA REPORTS
the statements of the confidential informant, and instructing
the jury. And the court did not abuse its discretion in limit-
ing the scope of his cross-examination of Herrera-Gutierrez,
overruling his motion for new trial, and denying his request
to reopen the evidence. Further, Stricklin failed to preserve
his claim of prosecutorial misconduct for appellate review. We
affirm Stricklin’s convictions and sentences.
Affirmed.
Heavican, C.J., not participating.
State of Nebraska, appellee, v. Terrell E. Newman,
also known as Monroe E. Terrell, also known
as Edward N. Terrell, appellant.
___ N.W.2d ___
Filed April 3, 2015. No. S-14-229.
1. Identification Procedures: Due Process: Appeal and Error. A district court’s
conclusion whether an identification is consistent with due process is reviewed de
novo, but the court’s findings of historical fact are reviewed for clear error.
2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact. The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a rea-
sonable doubt.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
5. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within
the trial court’s discretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.
6. Constitutional Law: Identification Procedures: Due Process. The Due Process
Clause does not require a preliminary judicial inquiry into the reliability of an