State v. Muhannad ( 2015 )

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STATE v. MUHANNAD 59
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fall. Here, the District, the movant, did not produce evidence
of an alternative cause. It is always possible, of course, that
Hughes’ feet simply became tangled, even if there is direct
evidence to the contrary. But a plaintiff is not bound to exclude
the possibility that the event might have happened in some
other way.36 Contrary to the District’s argument, Hughes’ case
is not doomed because there is more than one possible cause.
It is enough for summary judgment purposes that the evidence
permits a reasonable inference that negligent conditions on the
District’s property caused Hughes’ injury.
CONCLUSION
Because reasonable minds could draw contrary conclusions
from the evidence presented, the District did not show that
it was entitled to judgment as a matter of law. We therefore
reverse the court’s summary judgment order and remand the
cause for further proceedings.
R eversed and remanded for
further proceedings.
Wright, J., participating on briefs.
36
World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1
(1996).
State of Nebraska, appellee, v.
Wa’il M. Muhannad, appellant.
___ N.W.2d ___
Filed February 6, 2015. No. S-14-129.
1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions
of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court reaches
a conclusion independent of the court below.
3. Motions for Mistrial: Pleadings: Prosecuting Attorneys: Intent: Appeal and
Error. While the denial of a plea in bar generally involves a question of law, an
appellate court reviews under a clearly erroneous standard a finding concerning
the presence or absence of prosecutorial intent to provoke the defendant into
moving for a mistrial.
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4. Double Jeopardy: Motions for Mistrial. It is the general rule that where a court
grants a mistrial upon a defendant’s motion, the Double Jeopardy Clause does not
bar a retrial.
5. Motions for Mistrial. A defendant’s motion for a mistrial constitutes a deliber-
ate election on his or her part to forgo the right to the trial completed before the
first trier of fact. This is true even if the defendant’s motion is necessitated by
prosecutorial or judicial error.
6. ____. When a mistrial is declared at the defendant’s behest, the defendant’s
right to have his or her trial completed by a particular tribunal is, as a general
matter, subordinated to the public’s interest in fair trials designed to end in
just judgments.
7. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys: Intent:
Proof. Where a defendant moves for and is granted a mistrial based on prosecu-
torial misconduct, double jeopardy bars retrial when the conduct giving rise to
the successful motion for a mistrial was intended to provoke the defendant into
moving for a mistrial. It is the defendant’s burden to prove this intent.
8. Constitutional Law: Double Jeopardy. The Double Jeopardy Clause of the
Nebraska Constitution provides no greater protection than that of the U.S.
Constitution.
9. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys: Intent. In
the absence of an intent to goad the defendant into moving for mistrial, double
jeopardy would not bar retrial where the prosecutor simply made an error in
judgment or was grossly negligent.
10. ____: ____: ____: ____. The rule established in Oregon v. Kennedy, 456 U.S.
667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), does not cease to apply where
a defendant moves for and is granted successive mistrials due to actions of the
prosecutor or evidence adduced by the prosecutor. Under such circumstances, the
relevant factor for determining whether double jeopardy bars retrial is prosecuto-
rial intent to provoke the defendant to move for mistrial.
11. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys. The prosecu-
tor’s knowledge of the potential for mistrial does not change the standard used
to determine whether double jeopardy bars retrial after a mistrial entered on the
defendant’s motion.
Appeal from the District Court for Douglas County: Gary B.
Randall, Judge. Affirmed.
Alan G. Stoler, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Connolly, Stephan, McCormack, Miller-Lerman, and
Cassel, JJ.
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P er Curiam.
NATURE OF CASE
Wa’il M. Muhannad appeals the order of the district court
which denied his plea in bar following a mistrial. This is the
second time that this case has been appealed under such cir-
cumstances. We addressed the denial of Muhannad’s plea in
bar after the first mistrial in State v. Muhannad (Muhannad I).1
The present appeal arises from a plea in bar filed after a sec-
ond mistrial, which, like the first, resulted from impermissible
testimony by a particular witness.
In denying the plea in bar filed after the second mistrial,
the district court determined that double jeopardy did not
bar retrial, because the prosecutor did not intend to goad
Muhannad into moving for the mistrial. We affirm the denial
of Muhannad’s plea in bar.
FACTS
Muhannad is charged with first degree sexual assault of
his stepdaughter, M.H. He has been brought to trial on this
charge two separate times. Each time, the trial ended in mistrial
and he filed a plea in bar which alleged that double jeopardy
barred retrial.
First Mistrial
In the first jury trial, the State’s last witness was Carrie
Gobel, a licensed mental health practitioner and M.H.’s ther-
apist. Gobel testified, without objection, to the fact that
M.H. had been diagnosed with posttraumatic stress disorder
(PTSD) and to the symptoms M.H. exhibited.2 But when the
prosecutor asked Gobel to describe the “‘traumatic event
that ha[d] caused this diagnosis,’” Muhannad objected.3 His
objection was overruled, and the prosecutor again asked,
“‘According to your assessment of [M.H.], what was the
traumatic event that initiated the diagnosis of PTSD?’ Gobel
1
State v. Muhannad, 286 Neb. 567, 837 N.W.2d 792 (2013).
2
See id.
3
See id. at 572, 837 N.W.2d at 797.
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answered, ‘[M.H.] was sexually abused by her stepfather,
[Muhannad], for an extensive period of time.’”4
At the close of the case but before closing arguments,
Muhannad moved for a mistrial based on Gobel’s testimony.
The district court granted the motion, because “while Gobel
might have been able to opine that ‘sexual abuse’ was the
cause of M.H.’s PTSD, Gobel’s testimony was ‘over the edge’
when she stated her belief that Muhannad was the perpetrator
of the sexual abuse.”5
Muhannad filed a plea in bar to his retrial, which the dis-
trict court overruled. The court applied the rule from Oregon
v. Kennedy6 that “[o]nly where the governmental conduct in
question is intended to ‘goad’ the defendant into moving for
a mistrial may a defendant raise the bar of double jeopardy to
a second trial after having succeeded in aborting the first on
his own motion.” The court found that the prosecutor “may
have made an error in judgment” but that the prosecutor did
not “demonstrate an intent to goad [Muhannad] into moving
for a mistrial.” Accordingly, the court concluded that there
was no double jeopardy bar to retrial arising from prosecuto-
rial misconduct.
In Muhannad I, we affirmed the judgment of the district
court which denied Muhannad’s plea in bar. Muhannad had
argued that the bar to retrial recognized in Oregon v. Kennedy
was “not limited to circumstances where the State intended to
provoke a mistrial.”7 But we specifically rejected this argu-
ment and “declined to extend the Oregon v. Kennedy excep-
tion beyond situations where the prosecutor intended that the
misconduct would provoke a mistrial.”8 We determined that
the evidence supported the district court’s finding that the
prosecutor “made ‘an error in judgment’” but did not intend to
4
See id. at 572, 837 N.W.2d at 798 (alteration in original).
5
See id. at 573-74, 837 N.W.2d at 798.
6
Oregon v. Kennedy, 456 U.S. 667, 676, 102 S. Ct. 2083, 72 L. Ed. 2d 416
(1982).
7
See Muhannad I, supra note 1, 286 Neb. at 574, 837 N.W.2d at 799.
8
See id. at 578, 837 N.W.2d at 801.
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provoke a mistrial.9 We thus affirmed the denial of Muhannad’s
plea in bar.
Second Mistrial
Before Muhannad’s second jury trial began, he filed a
motion in limine seeking to exclude any testimony by Gobel
concerning M.H.’s PTSD. The district court overruled the
motion. However, because the court concluded that Gobel
could not directly or indirectly testify as to M.H.’s credibility,
it placed limits on the testimony Gobel could provide. On
December 16, 2013, the court ordered that Gobel’s testimony
should be “limited to the symptoms, behavior, and feelings
generally exhibited by the alleged victim as it relates to
show [how] the alleged victim’s behavior is similar to other
child sexual abuse victims who exhibit signs of [PTSD]. . . .
Further, the testimony cannot go beyond the child’s behavior.”
On December 23, the court further explained that “Gobel can
only testify that sexual abuse is one of many factors that can
cause PTSD. Gobel can also testify how PTSD affects the
alleged victim’s behavior. Gobel cannot state that recent abuse
or . . . abuse by [Muhannad] was the cause of the alleged vic-
tim’s PTSD.”
On January 9, 2014, the fourth day of the second jury trial,
the State called Gobel to testify. She testified, without objec-
tion, that M.H. “appeared very nervous and anxious, particu-
larly when discussing the sexual abuse,” and that M.H.’s treat-
ment plan included “learning effective [coping] mechanisms
to deal with symptoms caused by the sexual abuse.” Gobel
also testified, without objection, to the symptoms generally
exhibited by children in cases of sexual abuse. The pros-
ecutor then asked, “Will you describe for me, going through
each one of the criteria, the symptoms that you took note
of with respect to [M.H.]?” Gobel responded, “Certainly. In
regard to intrusive thoughts, [M.H.] was constantly thinking
of the abuse and of her stepfather when she came into treat-
ment.” Muhannad immediately objected and asked that Gobel’s
answer be stricken. The district court sustained the objection,
9
See id. at 580, 837 N.W.2d at 803.
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and the answer was stricken. Gobel attempted to continue
answering the question, but Muhannad asked to approach the
bench. After a sidebar, he moved for a mistrial and the district
court granted the motion.
Muhannad subsequently filed a plea in bar in which he
argued that double jeopardy barred retrial. The district court
denied the plea in bar. It found that the prosecutor “did not
specifically intend to provoke a second mistrial through [the]
question,” that the prosecutor did not make any error, that
Gobel “failed to abide by the Court’s Order in Limine regard-
ing the scope of [her] testimony,” and that Gobel “crossed the
line [by] providing testimony that granted credibility to the
testimony of the victim.”
Muhannad timely appealed, and we granted his petition to
bypass the Nebraska Court of Appeals.
ASSIGNMENT OF ERROR
Muhannad assigns, restated, that the district court erred
in determining that double jeopardy principles did not bar
retrial where a mistrial had been granted based on Gobel’s
testimony that the alleged victim was sexually assaulted by
Muhannad.
STANDARD OF REVIEW
[1,2] Issues regarding the grant or denial of a plea in bar
are questions of law.10 On a question of law, an appellate court
reaches a conclusion independent of the court below.11
[3] While the denial of a plea in bar generally involves a
question of law, we review under a clearly erroneous standard
a finding concerning the presence or absence of prosecutorial
intent to provoke the defendant into moving for a mistrial.12
ANALYSIS
The question presented by the instant appeal is whether
double jeopardy bars retrial of Muhannad following the second
10
State v. Huff, 279 Neb. 68, 776 N.W.2d 498 (2009).
11
Id.
12
Muhannad I, supra note 1.
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mistrial. Our focus is on the second mistrial only, because
it has already been decided that the first mistrial did not bar
­retrial.13 We similarly conclude that the second mistrial, which
was granted upon Muhannad’s motion, does not create a dou-
ble jeopardy bar to retrial.
[4-6] “[I]t is the general rule that where a court grants a mis-
trial upon a defendant’s motion, the Double Jeopardy Clause
does not bar a retrial.”14 A defendant’s motion for a mistrial
constitutes a deliberate election on his or her part to forgo the
right to the trial completed before the first trier of fact.15 This
is true even if the defendant’s motion is necessitated by pros-
ecutorial or judicial error.16 When the mistrial is declared at
the defendant’s behest, the defendant’s right to have his or her
trial completed by a particular tribunal is, as a general matter,
subordinated to the public’s interest in fair trials designed to
end in just judgments.17
[7] There is a “‘narrow exception’” to this general rule.18
In Oregon v. Kennedy, the U.S. Supreme Court held that
where a defendant moves for and is granted a mistrial based
on prosecutorial misconduct, double jeopardy bars retrial
when the “conduct giving rise to the successful motion for
a mistrial was intended to provoke the defendant into mov-
ing for a mistrial.”19 The Court rejected a “more generalized
standard of bad faith conduct, harassment, or overreaching
as an exception to the defendant’s waiver of his or her right
to a determination by the first tribunal.”20 Consequently,
“[p]rosecutorial conduct that might be viewed as harassment
or overreaching, even if sufficient to justify a mistrial on [the]
defendant’s motion, . . . does not bar retrial absent intent on
13
See id.
14
Id. at 576, 837 N.W.2d at 800.
15
Id.
16
Id.
17
Id.
18
See id.
19
See Oregon v. Kennedy, supra note 6, 456 U.S. at 679.
20
See Muhannad I, supra note 1, 286 Neb. at 577, 837 N.W.2d at 800.
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the part of the prosecutor to subvert the protections afforded
by the Double Jeopardy Clause.”21 It is the defendant’s burden
to prove this intent.22
[8,9] We have consistently held that the Double Jeopardy
Clause of the Nebraska Constitution provides no greater pro-
tection than that of the U.S. Constitution.23 We have accord-
ingly declined to extend the Oregon v. Kennedy exception
beyond situations where the prosecutor intended that the mis-
conduct would provoke a mistrial.24 Indeed, in the appeal
following the denial of Muhannad’s first plea in bar, we
rejected his arguments that the bar to retrial recognized in
Oregon v. Kennedy was “not limited to circumstances where
the State intended to provoke a mistrial.”25 We stated that
in the absence of an intent to goad the defendant into mov-
ing for mistrial, double jeopardy would not bar retrial where
the prosecutor “simply made ‘an error in judgment’” or was
grossly negligent.26
In the instant appeal, Muhannad does not argue that the
prosecutor goaded him to move for mistrial such that Oregon
v. Kennedy would apply to bar retrial. Rather, he claims that
the standard established in Oregon v. Kennedy should not
control his case. He argues that because his case involves suc-
cessive mistrials entered for identical reasons, double jeopardy
should bar retrial regardless of whether the prosecutor intended
to provoke the second mistrial.
[10] We reject this argument that Oregon v. Kennedy should
not control Muhannad’s case. The rule established in Oregon
v. Kennedy does not cease to apply where a defendant moves
for and is granted successive mistrials due to actions of the
prosecutor or evidence adduced by the prosecutor. Under such
circumstances, the relevant factor for determining whether
21
Oregon v. Kennedy, supra note 6, 456 U.S. at 675-76.
22
Muhannad I, supra note 1.
23
Id.
24
Id.
25
See id. at 574, 837 N.W.2d at 799.
26
See id. at 580, 837 N.W.2d at 803.
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double jeopardy bars retrial is prosecutorial intent to provoke
the defendant to move for mistrial,27 as discussed in Oregon
v. Kennedy.
The Eighth Circuit has applied Oregon v. Kennedy in cases
where successive mistrials were caused by similar acts of the
prosecutor. In U.S. v. Standefer,28 the defendants moved for
and were granted two mistrials due to the prosecutor’s failure
to disclose relevant facts during discovery. A third mistrial
resulted from a hung jury. To determine whether retrial was
barred by these mistrials, the court looked for evidence of pros-
ecutorial intent to goad the defendants into moving for mistrial.
It found that “successive mistrials caused by prosecutorial
blunders might in some cases evidence an intent to prejudice
rights secured by the Double Jeopardy Clause” but that there
was “no such evidence in this case.”29
Other courts have applied Oregon v. Kennedy in cases where
impermissible testimony on a certain subject caused multiple
mistrials to be granted upon the defendant’s motion. In State v.
Fuller,30 successive mistrials were triggered by the testimony
of the alleged victim that the defendant’s driver’s license
had been suspended. To determine whether a third trial was
barred by these mistrials granted at the defendant’s request,
the Minnesota Supreme Court applied Oregon v. Kennedy. It
concluded that in the absence of intent to provoke the mis-
trials, double jeopardy did not bar a third trial. In State v.
Koelemay,31 the defendant moved for and was granted a mis-
trial in two successive trials due to testimony by prosecution
witnesses about the defendant’s prior drug record. A Louisiana
appellate court concluded that the mistrials did not bar a third
27
See, U.S. v. Amaya, 750 F.3d 721 (8th Cir. 2014); U.S. v. Standefer, 948
F.2d 426 (8th Cir. 1991); U.S. v. Alvin, No. 10-65, 2014 WL 2957439
(E.D. Pa. 2014); State v. Dillard, 55 So. 3d 56 (La. App. 2010); State v.
Koelemay, 497 So. 2d 321 (La. App. 1986); State v. Fuller, 374 N.W.2d
722 (Minn. 1985).
28
U.S. v. Standefer, supra note 27.
29
See id. at 432.
30
State v. Fuller, supra note 27.
31
State v. Koelemay, supra note 27.
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trial, because “there [was] no showing of any intent on the part
of the prosecutor to cause the defendant to move for a mistrial
at any time in either trial.”32
[11] Muhannad argues that his case is different from U.S.
v. Standefer,33 and other cases that apply Oregon v. Kennedy,
because in his case, the prosecutor was aware, by virtue of the
first mistrial, that Gobel’s testimony could cause a mistrial.
But the prosecutor’s knowledge of the potential for mistrial
does not change the standard used to determine whether double
jeopardy bars retrial after a mistrial entered on the defend­
ant’s motion.34
In U.S. v. Amaya,35 the Eighth Circuit considered whether
the conviction of the defendant after two mistrials, both
entered on the defendant’s motion, violated double jeopardy.
One mistrial was caused by the prosecutor’s failure to dis-
close certain facts in discovery. The other mistrial was trig-
gered by the testimony of a witness for the prosecution that
the defend­ant was a “‘drug dealer.’”36 Such testimony was
in direct violation of the trial court’s pretrial ruling that that
“‘witnesses will not be allowed to opine that [the defendant]
is a “drug dealer.”’”37 Due to this ruling, the prosecutor argu-
ably was aware of the potential for mistrial. Nonetheless, the
Eighth Circuit determined whether the mistrials barred retrial
by looking for evidence that the “government intended to
provoke a mistrial.”38 It followed Oregon v. Kennedy, as have
other courts in similar situations.39
32
See id. at 325.
33
U.S. v. Standefer, supra note 27.
34
See, U.S. v. Amaya, supra note 27; U.S. v. Alvin, supra note 27; State v.
Koelemay, supra note 27; State v. Fuller, supra note 27.
35
U.S. v. Amaya, supra note 27.
36
See id. at 723.
37
See id. (emphasis in original).
38
See id. at 726.
39
See, U.S. v. Alvin, supra note 27; State v. Koelemay, supra note 27; State
v. Fuller, supra note 27.
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Muhannad’s arguments that Oregon v. Kennedy should not
apply to his case lack merit. Therefore, we proceed accord-
ing to the standard established in that case when determining
whether the second mistrial creates a double jeopardy bar
to retrial.
The record supports the district court’s conclusion that the
prosecutor did not intend to goad Muhannad into moving for
the second mistrial. The prosecutor’s comments at pretrial
hearings demonstrated that she understood what testimony
she could and could not elicit from Gobel. At one hearing,
the prosecutor stated, “With respect to the expert testimony,
the one part I don’t disagree with is that I can’t ask about the
opinions . . . as to whether or not [M.H.] had been sexually
abused or that the diagnosis is a result of her being sexually
abused.” Given these limitations, in the second trial, the pros-
ecutor made changes to the manner in which she questioned
Gobel and tailored the questions to touch upon permissible
topics only. Even the question which provoked the inadmis-
sible testimony was appropriate: “Will you describe for me,
going through each one of the criteria, the symptoms that
you took note of with respect to [M.H.]?” At the hearing
on Muhannad’s plea in bar, the prosecutor denied that she
asked this question to provoke a mistrial. She stated that any
suggestion to the contrary was “absolutely absurd [under]
the circumstance[s].”
Muhannad argues that “the misconduct of an expert wit-
ness for the State,” such as Gobel, “should be imputed to the
prosecution.”40 He alleges that Gobel may have “deliberately
chose[n] to ignore” the district court’s order limiting the scope
of her testimony.41 We need not consider whether, as a general
matter, a witness’ intent can be imputed to the prosecutor,
because doing so would not change the result in this case.
Under Oregon v. Kennedy, a mistrial entered on the defendant’s
40
See brief for appellant at 11.
41
See id. at 8.
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motion is a bar to retrial only when there is an intent to “‘goad’
the defendant into moving for a mistrial.”42
It was not clearly erroneous for the district court to con-
clude that the prosecutor did not intend to goad Muhannad into
moving for the second mistrial. Therefore, double jeopardy
does not bar a third trial of Muhannad and the district court did
not err in overruling his plea in bar.
CONCLUSION
For the foregoing reasons, we affirm the order of the district
court which overruled Muhannad’s plea in bar following the
second mistrial.
Affirmed.
Wright, J., participating on briefs.
Heavican, C.J., not participating.
42
See Oregon v. Kennedy, supra note 6, 456 U.S. at 676.
State of Nebraska, appellee, v.
Terrance J. Hale, appellant.
___ N.W.2d ___
Filed February 6, 2015. No. S-14-183.
1. 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.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
3. 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.
4. ____: ____. The relevant question when an appellate court reviews a sufficiency
of the evidence claim is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.