State v. Cavitte , 28 Neb. Ct. App. 601 ( 2020 )

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. CAVITTE
Cite as 28 Neb. App. 601State of Nebraska, appellee, v.
Augustine L. Cavitte, appellant.
___ N.W.2d ___
Filed July 7, 2020. No. A-19-643.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a
confession based on the claimed involuntariness of the statement,
including claims that it was procured in violation of the safeguards
established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), appellate courts apply a
two-part standard of review. With regard to historical facts, appellate
courts review the trial court’s findings for clear error. Whether those
facts suffice to meet the constitutional standards, however, is a question
of law which appellate courts review independently of the trial court’s
determination.
2. Motions for New Trial: Prosecuting Attorneys: Appeal and Error.
An appellate court reviews a motion for new trial on the basis of pros-
ecutorial misconduct for an abuse of discretion of the trial court.
3. Motions for Mistrial: Appeal and Error. An appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial
unless the court has abused its discretion.
4. Rules of Evidence: Other Acts. An appellate court reviews for abuse
of discretion a trial court’s evidentiary rulings on the admissibility of
a defendant’s other crimes or bad acts under Neb. Rev. Stat. § 27-404(Reissue 2016), or under the inextricably intertwined exception to
the rule.
5. Miranda Rights. The U.S. Supreme Court in Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), adopted a set of
safeguards to protect suspects during modern custodial interrogations.
6. ____. The safeguards under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), are implicated whenever a person is in
custody and interrogated.
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STATE v. CAVITTE
Cite as 28 Neb. App. 6017. Miranda Rights: Self-Incrimination. When a custodial interrogation
occurs in the absence of Miranda-style procedural safeguards, an arrest-
ee’s self-incriminating statements are inadmissible in court.
8. Miranda Rights. Miranda warnings, once given, are not to be accorded
unlimited efficacy or perpetuity.
9. Miranda Rights: Constitutional Law: Time. A suspect need not be
advised of his or her constitutional rights more than once unless the time
of warning and the time of subsequent interrogation are too remote in
time from one another.
10. Miranda Rights: Waiver. A valid Miranda waiver must be voluntary
in the sense that it was the product of a free and deliberate choice made
with a full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it.
11. ____: ____. In determining whether a waiver of Miranda rights is
knowingly and voluntarily made, a court applies a totality of the cir-
cumstances test, and factors to be considered include the suspect’s age,
education, intelligence, prior contact with authorities, and conduct.
12. Confessions: Police Officers and Sheriffs. In determining whether an
accused’s statement was given freely and voluntarily, courts examine the
tactics used by the police and the details of the interrogation.
13. ____: ____. While intoxication is relevant to determining whether police
conduct amounted to coercion of a confession, intoxication does not
automatically render a confession involuntary.
14. Trial: Prosecuting Attorneys: Appeal and Error. When considering
a claim of prosecutorial misconduct, appellate courts first consider
whether the prosecutor’s acts constitute misconduct.
15. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does
not mislead and unduly influence the jury is not misconduct.
16. Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court
concludes that a prosecutor’s acts were misconduct, the court next
considers whether the misconduct prejudiced the defendant’s right to a
fair trial.
17. Trial: Prosecuting Attorneys. Public prosecutors are charged with the
duty to conduct criminal trials in such a manner that the accused may
have a fair and impartial trial.
18. Trial: Prosecuting Attorneys: Words and Phrases. Generally, pros-
ecutorial misconduct encompasses conduct that violates legal or ethical
standards for various contexts because the conduct will or may under-
mine a defendant’s right to a fair trial.
19. Judgments: Appeal and Error. A correct result will not be set aside
merely because the trial court applied the wrong reasoning in reaching
that result.
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STATE v. CAVITTE
Cite as 28 Neb. App. 60120. Rules of Evidence: Other Acts. Inextricably intertwined evidence
includes evidence that forms part of the factual setting of the crime, or
evidence that is so blended or connected to the charged crime that proof
of the charged crime will necessarily require proof of the other crimes or
bad acts, or if the other crimes or bad acts are necessary for the prosecu-
tion to present a coherent picture of the charged crime.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Bethany R. Stensrud for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Moore, Chief Judge, and Riedmann and Welch, Judges.
Riedmann, Judge.
I. INTRODUCTION
Augustine L. Cavitte appeals her conviction following a
jury trial in the district court for Douglas County of one count
of second degree domestic assault. On appeal, she argues the
court erred in overruling her motions for a mistrial and a new
trial, in admitting evidence of her prior bad acts, and in deny-
ing her pretrial motion to suppress. For the reasons set forth
below, we affirm.
II. BACKGROUND
In May 2018, Cavitte was charged in the county court for
Douglas County with one count of domestic assault in the
second degree, in violation of Neb. Rev. Stat. § 28-323(2)
and (6) (Reissue 2016), a Class IIIA felony, following an
altercation with her husband. Cavitte was subsequently bound
over to the district court for Douglas County, where she
was charged by information with the same count. She filed
a motion to suppress her statements made to law enforce-
ment on the night of the incident, arguing that the statements
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STATE v. CAVITTE
Cite as 28 Neb. App. 601were obtained in violation of her rights under the U.S. and
Nebraska Constitutions.
At the hearing on Cavitte’s motion to suppress, the State
adduced testimony from Sgt. Cody Baines of the Omaha
Police Department. Baines testified that on the evening of
April 30, 2018, he responded to a call stating that a female
had stabbed a male. When he arrived at the scene, Cavitte
was handcuffed and placed in the back of a police cruiser,
while the victim was transported for medical attention. Baines
questioned Cavitte while she was in the police cruiser, inquir-
ing as to her name, the victim’s name, their relationship, and
a brief description of what occurred. Her Miranda rights
were then administered and questioning continued. Baines’
questioning of Cavitte is laid out in greater detail in the
analysis section below. Baines informed the court that while
he was questioning Cavitte, it appeared that she had been
crying and there was a moderate odor of alcohol emanating
from her.
The State also provided testimony from Det. Derrick
Kreikemeier, who interviewed Cavitte at the police head-
quarters. Prior to interviewing her, Kreikemeier inquired of
Cavitte whether she remembered her Miranda rights previ-
ously administered or whether she needed them read again.
She indicated she remembered, and Kreikemeier proceeded to
interview her without reading them to her again. After initially
telling Kreikemeier a false story, Cavitte told him that she had
been staying at her husband’s apartment for 3 days to work
on marital issues. She became angry with him when he told
her that he had been having an affair, and she grabbed a small
knife and “glazed” him on the head with it. After “glazing”
him, the two wrestled until she realized he was bleeding. She
then wrapped his head in an article of clothing. Kreikemeier
testified that he noticed an odor of alcohol on Cavitte and
she was emotional, but that she appeared to be appropriately
answering his questions. Kreikemeier also admitted that he
had to redirect Cavitte multiple times during the interview.
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STATE v. CAVITTE
Cite as 28 Neb. App. 601Additional details regarding Kreikemeier’s interview with
Cavitte are provided below.
Following the suppression hearing, the district court over-
ruled Cavitte’s motion to suppress. The court determined that
Cavitte was properly arrested, she was advised of her Miranda
rights, and she knowingly and voluntarily waived her Miranda
rights. A jury trial was held in March 2019. Prior to the
start of trial, a discussion was held among the State, defense
counsel, and the court regarding a statement Cavitte made
to Kreikemeier that the abuse between her and her husband
was “50/50.” Defense counsel argued that the statement was
improper under Neb. Rev. Stat. § 27-404 (Reissue 2016). The
court disagreed, stating that the issue was discussed in cham-
bers, its ruling had not changed, and it did not find that the
statement was barred by § 27-404.
At trial, Baines and Kreikemeier testified consistently with
their testimony at the suppression hearing. The State also
offered into evidence audio recordings of Cavitte’s telephone
calls from jail following the altercation, as well as testimony
from her husband’s treating physician, who testified that her
husband had four lacerations on his head which were not deep.
Cavitte’s defense consisted of testimony from an expert wit-
ness on domestic violence and intimate partner abuse, who
testified generally regarding the nature of a relationship involv-
ing domestic violence. Cavitte also testified in her own behalf,
stating that she “glazed” her husband in self-defense, after he
choked and punched her. Cavitte was found guilty of second
degree domestic assault and was sentenced to 3 years’ proba-
tion. She timely appealed.
III. ASSIGNMENTS OF ERROR
Cavitte assigns, restated, that the district court erred by (1)
overruling her motion to suppress, (2) denying her motion for
a mistrial and her motion for a new trial based on prosecutorial
misconduct, and (3) admitting evidence of her prior bad acts
under § 27-404.
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STATE v. CAVITTE
Cite as 28 Neb. App. 601IV. STANDARD OF REVIEW
[1] In reviewing a motion to suppress a confession based on
the claimed involuntariness of the statement, including claims
that it was procured in violation of the safeguards established
by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we apply a
two-part standard of review. State v. Rogers, 277 Neb. 37, 760
N.W.2d 35 (2009). With regard to historical facts, we review
the trial court’s findings for clear error. Id. Whether those facts
suffice to meet the constitutional standards, however, is a ques-
tion of law which we review independently of the trial court’s
determination. Id.[2,3] An appellate court reviews a motion for new trial on
the basis of prosecutorial misconduct for an abuse of discretion
of the trial court. State v. McSwine, 292 Neb. 565, 873 N.W.2d
405 (2016). An appellate court will not disturb a trial court’s
decision whether to grant a motion for mistrial unless the court
has abused its discretion. State v. Gonzales, 294 Neb. 627, 884
N.W.2d 102 (2016).
[4] An appellate court reviews for abuse of discretion a trial
court’s evidentiary rulings on the admissibility of a defendant’s
other crimes or bad acts under § 27-404, or under the inextrica-
bly intertwined exception to the rule. State v. Burries, 297 Neb.
367, 900 N.W.2d 483 (2017).
V. ANALYSIS
1. Miranda Violations
Cavitte argues that the district court erred in overruling her
motion to suppress statements made in violation of her rights
under the Fifth Amendment to the U.S. Constitution and article
I, section 7, of the Nebraska Constitution. Specifically, Cavitte
alleges that the court erred in failing to suppress her statements
made prior to receiving the Miranda warning, failing to sup-
press her statements made after receiving the Miranda warn-
ing, and in finding that her Miranda waiver was given know-
ingly, voluntarily, and intelligently. We disagree.
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Cite as 28 Neb. App. 601(a) Pre-Miranda Statements
Cavitte argues that the district court erred in not suppress-
ing statements she made while in custody in the police cruiser
because she had not been advised of her rights pursuant to
Miranda v. Arizona, supra. We disagree.
[5-7] The Miranda Court adopted a set of safeguards to
protect suspects during modern custodial interrogations, which
have also been implemented through Nebraska courts. State v.
Williams, 26 Neb. App. 459, 920 N.W.2d 868 (2018). These
safeguards are implicated whenever a person is in custody
and interrogated. Id. It is undisputed that a person who is
handcuffed and placed in a police cruiser’s back seat is in
custody. State v. Bormann, 279 Neb. 320, 777 N.W.2d 829(2010). When a custodial interrogation occurs in the absence
of Miranda-style procedural safeguards, an arrestee’s self-
incriminating statements are inadmissible in court. See State v.
Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).
Baines began questioning Cavitte at 12:10 a.m. while she
was handcuffed in the back of his police cruiser, and he asked
about her living arrangements, her relationship with her hus-
band, and her injuries. After Cavitte informed him that she
did not know she had any injuries, Baines asked, “If they
happened, and they did happen, how do you think they hap-
pened?” Cavitte then responded that it was “a disagreement.”
Baines then questioned, “A disagreement with your husband?
What did you guys disagree about?” Cavitte informed him
that “we’ve been going through a lot in our marriage.” Baines
next stated, “You guys still love each other and it’s tough, I
understand,” which prompted Cavitte to state that they had
been married two times. Baines then requested another officer
help him with the rights advisory and read Cavitte her Miranda
rights at 12:12 a.m.
Cavitte asserts her statements that a “disagreement” occurred
and that “we hurt each other” were incriminating statements.
We disagree. First, although Cavitte asserts she stated that
“we hurt each other” in response to Baines’ questioning, and
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STATE v. CAVITTE
Cite as 28 Neb. App. 601Baines agreed with Cavitte’s attorney’s recitation of Cavitte’s
responses at the suppression hearing, our review of the audio
recording of Baines’ questioning of Cavitte does not reveal she
stated that “we hurt each other” prior to her Miranda rights
being given.
Further, even if Cavitte did state that “we hurt each other” in
response to Baines’ question about the nature of the disagree-
ment between Cavitte and her husband, neither that statement
nor Cavitte’s assertion that a disagreement occurred is incrimi-
nating because Baines was questioning her about how she suf-
fered her own injuries. The questions asked by Baines did not
reference Cavitte’s husband’s injuries or whether Cavitte had
caused his injuries.
Other jurisdictions have found that a law enforcement offi-
cer’s pre-Miranda questions regarding a suspect’s apparent
injuries are valid. See, State v. Ramos, 317 Conn. 19, 31, 114
A.3d 1202, 1209 (2015) (police officer’s question of “‘what
happened to you?’” made to defendant covered with blood
was not to elicit incriminating response); Archanian v. State,
122 Nev. 1019, 145 P.3d 1008 (2006) (inquiry into suspect’s
medical condition not likely to elicit incriminating response);
Johnson v. State, 269 Ind. 370, 377, 380 N.E.2d 1236, 1240
(1978) (officer’s question of “what happened” to defendant
with blood on face was valid). Therefore, because Baines’
question of “how do you think [your injuries] happened?” was
not intended to elicit an incriminating response, but, rather,
was meant to inquire into Cavitte’s welfare, it was not a
Miranda violation.
Cavitte argues that Baines’ question was similar to that in
State v. Juranek, 287 Neb. 846, 849, 844 N.W.2d 791, 797
(2014), where the officer asked, “‘Do you want to tell it to
me?’” before providing the suspect with his Miranda rights,
which the court determined was a Miranda violation. However,
in Juranek, directly before the officer asked, “‘Do you want
to tell it to me?’” the suspect had stated that he had already
told “‘it,’” meaning his confession, to another officer “‘14
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Cite as 28 Neb. App. 601times.’” 287 Neb. at 849, 844 N.W.2d at 797. Thus, the court
determined that the officer’s use of the word “it” referred to
the suspect’s confession, which the officer should have known
would likely elicit an incriminating response. Id. Here, Baines’
question was in reference to Cavitte’s injuries and how she
obtained them; they were not intended to elicit an incriminat-
ing response.
Accordingly, the district court did not err in receiving
Cavitte’s pre-Miranda statements.
(b) Post-Miranda Statements
Cavitte also asserts that her statements made to Kreikemeier
should have been suppressed, because the statements were
made during the continuation of a custodial interrogation
begun before the Miranda warning was administered. Cavitte’s
argument that her post-Miranda statements should have been
suppressed is predicated on the argument that her pre-Miranda
statements were a confession. However, as stated above, we
do not find her pre-Miranda statements to have been a con-
fession. Nonetheless, we address Cavitte’s argument that
her post-Miranda confession should have been suppressed.
We disagree.
Cavitte bases her argument on Missouri v. Seibert, 542 U.S.
600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), in which
the U.S. Supreme Court addressed the two-step interrogation
technique of (1) giving Miranda warnings only after an inter-
rogation has produced a confession and then (2) questioning
the suspect so as to cover the same ground a second time, but
with Miranda warnings in place. See State v. Juranek, supra.
A plurality of the U.S. Supreme Court concluded that “when
Miranda warnings are inserted in the midst of coordinated
and continuing interrogation, they are likely to mislead and
‘depriv[e] a defendant of knowledge essential to his ability to
understand the nature of his rights and the consequences of
abandoning them.’” See Missouri v. Seibert, 542 U.S. at 613-
14 (quoting Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135,
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Cite as 28 Neb. App. 60189 L. Ed. 2d 410 (1986)). Accord State v. Juranek, supra. The
plurality explained that when a suspect is advised of his or
her Miranda rights in the middle of an interrogation, the issue
becomes whether the warnings effectively advised that he or
she “could choose to stop talking even if he [or she] had talked
earlier.” See Missouri v. Seibert, 542 U.S. at 612. Accord State
v. Juranek, supra. Of particular significance to the Court’s
conclusion that the pre-Miranda confession made the later
Miranda warnings ineffective was the fact that questioning
before the Miranda warnings was “systematic, exhaustive, and
managed with psychological skill” to such an extent that after
the unwarned interrogation, “there was little, if anything, of
incriminating potential left unsaid.” See Missouri v. Seibert,
542 U.S. at 616. Accord State v. Juranek, supra.
In State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014),
the Nebraska Supreme Court determined that the Miranda
warning issued during an interrogation, but after incriminat-
ing statements had been made, did not invalidate the post-
Miranda statements because the initial interrogation consisted
of one question that was not focused on the key points of the
investigation. In State v. Clifton, 296 Neb. 135, 892 N.W.2d
112 (2017), the court found that the defendant was questioned
for 5 minutes prior to receiving the Miranda warning, mostly
about background information, and the defendant did not make
any incriminating statements; thus, the post-Miranda confes-
sion was valid. Finally, in State v. Williams, 26 Neb. App.
459, 920 N.W.2d 868 (2018), this court held that the defend­
ant’s post-Miranda confession was admissible because his pre-
Miranda statements did not go to many of the key points of the
investigation.
Here, as iterated above, Cavitte did not make any incrimi-
nating statements to Baines before receiving the Miranda
warning. Thus, as in State v. Clifton, supra, her post-Miranda
confession was admissible. Even if we were to find that Cavitte
made incriminating statements to Baines, her post-Miranda
confession to Kreikemeier would not be void, because Baines’
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STATE v. CAVITTE
Cite as 28 Neb. App. 601questioning did not go to the key points of the investigation.
Baines merely asked how Cavitte was injured and what the
nature of her disagreement was with her husband. Her confes-
sion to Kreikemeier was much more detailed and was not sim-
ply a restatement of her “confession” to Baines.
Cavitte further asserts that her confession to Kreikemeier
should have been suppressed because Kreikemeier did not
re-administer the Miranda warning to her prior to questioning
her. We disagree.
First, while Kreikemeier did not provide Cavitte with her
Miranda rights, he ensured that she recalled the rights advi-
sory that Baines went over with her. At the start of the
interview, Cavitte made a statement about the length of her
relationship with her husband. Before asking any questions,
Kreikemeier asked her if she remembered the rights advisory
form that the officers at the scene went over with her. Cavitte
nodded her head and indicated that she did. Kreikemeier
again asked if she recalled the rights or if he needed to go
over them again with her. Cavitte asked, “If I say I recall
does that mean I’m going to jail?” After informing Cavitte
that he was there to get her side of the story, Kreikemeier
again asked if she recalled the rights advisory and informed
her that if she did not recall, he would go over the rights with
her again. Cavitte once again indicated that she recalled the
rights advisory.
[8,9] Miranda warnings, once given, are not to be accorded
unlimited efficacy or perpetuity. In re Interest of Miah S., 290
Neb. 607, 861 N.W.2d 406 (2015). However, a suspect need
not be advised of his or her constitutional rights more than
once unless the time of warning and the time of subsequent
interrogation are too remote in time from one another. Id.There is no fixed time limit as to how much time must pass
before the warnings are ineffective. Id. Thus, in In re Interest
of Miah S., supra, the Supreme Court determined that 24 hours
between the Miranda warning and subsequent interrogation did
not render the warning ineffective.
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Cite as 28 Neb. App. 601The Supreme Court also enunciated several factors to con-
sider whether a Miranda warning has expired, including:
“(1) the length of time between the giving of the first
warnings and subsequent interrogation . . . ; (2) whether
the warnings and the subsequent interrogation were given
in the same or different places . . . ; (3) whether the
warnings were given and the subsequent interrogation
conducted by the same or different officers . . . ; (4) the
extent to which the subsequent statement differed from
any previous statements . . . ; (5) the apparent intellectual
and emotional state of the suspect.”
In re Interest of Miah S., 290 Neb. at 615, 861 N.W.2d at 414.
See, also, State v. Williams, 26 Neb. App. 459, 920 N.W.2d 868(2018) (citing Missouri v. Seibert, 542 U.S. 600, 124 S. Ct.
2601, 159 L. Ed. 2d 643 (2004)).
When examining the above factors, it is clear the district
court did not err in overruling Cavitte’s motion to suppress.
First, the interrogations took place roughly 2 hours apart,
which is a far shorter period than the 24 hours deemed proper
in In re Interest of Miah S., supra. Next, and importantly,
prior to questioning Cavitte, Kreikemeier asked multiple times
whether she recalled the rights advisory Baines issued to her
and told her that if she did not, Kreikemeier would go over
it with her. Cavitte responded that she remembered the rights
advisory and did not need to hear it again.
The Supreme Court in In re Interest of Miah S., supra,
found the juvneile defendant’s insistence that he recalled the
Miranda warning was a strong factor in determining that the
warnings were still fresh. Although Cavitte was questioned by
different officers and in different locations, both Baines and
Kreikemeier were part of the same law enforcement depart-
ment and questioned her regarding the same offense; thus,
there was less risk of confusion than if the officers were from
different agencies or questioned the suspect about separate
offenses. See In re Interest of Miah S., supra. Therefore, in
light of the fact that just a short period of time had passed
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Cite as 28 Neb. App. 601between the time Cavitte received the Miranda warning and
when she was questioned by Kreikemeier, and because she
indicated to Kreikemeier that she recalled her rights and did
not need the advisory again, Kreikemeier was not required to
administer Miranda warnings a second time to Cavitte.
Accordingly, the district court did not err in overruling
Cavitte’s motion to suppress her post-Miranda statements.
(c) Valid Waiver of Rights
Finally, Cavitte argues that the district court erred in over-
ruling her motion to suppress because she was intoxicated and
did not knowingly, intelligently, and voluntarily waive her
Fifth Amendment rights. We disagree.
[10,11] Miranda warnings are a prerequisite to interroga-
tion, and fundamental with respect to the Fifth Amendment
privilege. See State v. Burries, 297 Neb. 367, 900 N.W.2d
483 (2017). Miranda rights can be waived if the suspect does
so knowingly and voluntarily. State v. Burries, supra. A valid
Miranda waiver must be voluntary in the sense that it was the
product of a free and deliberate choice and made with a full
awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it. State v.
Burries, supra. In determining whether a waiver is knowingly
and voluntarily made, a court applies a totality of the circum-
stances test, and factors to be considered include the suspect’s
age, education, intelligence, prior contact with authorities, and
conduct. Id.[12,13] In determining whether an accused’s statement was
given freely and voluntarily, courts examine the tactics used
by the police and the details of the interrogation. See State
v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018). Other
relevant factors include any characteristics of the accused
known to police, which might cause his or her will to be easily
overborne, such as a defendant’s mental state or intoxication.
Id. However, while intoxication is relevant to determining
whether police conduct amounted to coercion, intoxication
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Cite as 28 Neb. App. 601does not automatically render a confession involuntary. Id.Concerning intoxication, the Supreme Court has stated that
the defendant must be so intoxicated that he or she is unable
to understand the meaning of his or her statements. State v.
Williams, 269 Neb. 917, 697 N.W.2d 273 (2005). If the trial
judge is satisfied that under the totality of the circumstances
the defendant was able to reason, comprehend, or resist, the
statements are to be admitted. Id.Here, the district court determined that Cavitte was not
intoxicated to the point that her waiver of her Miranda rights
was invalid. The court found that Cavitte did not give any
indication to Baines or Kreikemeier that she did not under-
stand her rights, that her off-topic statements and mumbled
answers did not render her confession involuntary, and that
neither Baines nor Kreikemeier used coercive actions to over-
bore Cavitte’s free will. Based on the record before us, we do
not find that the district court erred in overruling Cavitte’s
motion to suppress.
The video taken from inside the police cruiser indicates
that Baines was calm and polite when questioning Cavitte
and that Cavitte’s responses were appropriate to the questions
asked. Cavitte did not give any indication that she did not
understand her rights when Kreikemeier asked her whether
she remembered when Baines previously advised her of her
rights. Further, while both Baines and Kreikemeier indicated
that Cavitte had an odor of alcohol emanating from her, and
Cavitte informed Kreikemeier that she had been drinking,
neither officer found her to be intoxicated to the point she did
not understand their questions. The record reflects this asser-
tion, as Cavitte generally provided appropriate answers to the
questions asked. The district court determined that, although
Cavitte did have to be redirected occasionally by Kreikemeier,
she was coherent and able to understand the questions posed
to her.
On appeal, Cavitte asserts that the coercive tactics
employed by Kreikemeier, including the size of the interview
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Cite as 28 Neb. App. 601room and the fact that Kreikemeier lied to her and used pro-
fanity, combined with her intoxication, overcame her free
will. The district court, after examining the evidence and
observing the witnesses, determined that coercive tactics were
not used. This was not clearly erroneous. As iterated above,
Kreikemeier did not coerce her to speak with him by offer-
ing leniency or using threats. Based on the evidence before
us, the district court did not err in determining that Cavitte’s
waiver of her Miranda rights was done knowingly, intelli-
gently, and voluntarily.
The district court did not err in overruling Cavitte’s motion
to suppress, because she did not provide an incriminating
statement prior to receiving a Miranda warning and her post-
Miranda confession was not invalid. Further, the record indi-
cates that Cavitte knowingly, intelligently, and voluntarily
waived her Miranda rights.
2. Prosecutorial Misconduct
Cavitte asserts that the district court erred by overruling her
motion for a mistrial and her motion for a new trial based upon
prosecutorial misconduct by the State. We disagree, and we
find that the district court did not abuse its discretion in over-
ruling Cavitte’s motions.
During its closing argument, the State argued that Cavitte
had given a variety of different stories and that now it came
down to what the jury should believe. Referencing the different
versions of events, it framed Cavitte’s defense as follows:
Believe me then, but don’t believe me now? Believe
me as I stand up here and testify to my own story that’s
not making sense, ten and a half months after this took
place when I was in an interview room with a detective
for over an hour and during no time did I state anything
about [my hisband’s] using any threats against me, [his]
using any force against me, prior to me cutting him?
Later in its closing, the State emphasized, “And nowhere in
the ten and a half months leading up to this trial was there
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Cite as 28 Neb. App. 601any evidence that she tried to reach out to law enforcement to
change her story.” And again, stating:
It doesn’t make sense that [Cavitte], mere hours after
the assault and after being in contact with law enforce-
ment for hours, intending to get her side of the story from
her, is just now informing us of this self-defense ten and
a half months after the assault took place. And even when
she’s questioned about what happened, then she back-
tracks and isn’t able to remember what happened.
After the State finished its closing argument, Cavitte moved
for a mistrial, asserting that the State was attempting to use
her silence regarding her claim of self-defense against her
and shifting the burden of proving self-defense to her. The
court denied the motion. After trial, Cavitte filed a motion
for a new trial, arguing, in relevant part, misconduct of the
prosecuting attorney which prevented her from having a fair
trial. The court subsequently overruled the motion for a new
trial, finding that the State did not shift the burden of proving
self-defense to Cavitte and did not improperly comment on her
postarrest silence.
[14-16] When considering a claim of prosecutorial miscon-
duct, we first consider whether the prosecutor’s acts constitute
misconduct. State v. McSwine, 292 Neb. 565, 873 N.W.2d
405 (2016). A prosecutor’s conduct that does not mislead and
unduly influence the jury is not misconduct. Id. But if we con-
clude that a prosecutor’s acts were misconduct, we next con-
sider whether the misconduct prejudiced the defendant’s right
to a fair trial. Id.[17,18] Public prosecutors are charged with the duty to
conduct criminal trials in such a manner that the accused may
have a fair and impartial trial. State v. Gonzales, 294 Neb. 627,
884 N.W.2d 102 (2016). While a prosecutor should prosecute
with “‘earnestness and vigor’” and “‘may strike hard blows,
he is not at liberty to strike foul ones.’” Id. at 645, 884 N.W.2d
at 117. Generally, prosecutorial misconduct encompasses con-
duct that violates legal or ethical standards for various contexts
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Cite as 28 Neb. App. 601because the conduct will or may undermine a defendant’s right
to a fair trial. State v. Dubray, 289 Neb. 208, 854 N.W.2d
584 (2014). Prosecutors are charged with the duty to conduct
criminal trials in such a manner that the accused may have
a fair and impartial trial, and prosecutors are not to inflame
the prejudices or excite the passions of the jury against the
accused. Id.While prosecutors are prohibited from stating a personal
opinion as to the credibility of a witness, or the guilt or inno-
cence of an accused, they are permitted to present a spirited
summation that a defense theory is illogical or unsupported
by the evidence and to highlight the relative believability of
witnesses for the State and the defense, when their comments
rest on reasonably drawn inferences from the evidence. State
v. Gonzales, supra (citing State v. Dubray, supra). Thus, in
cases where the prosecutor comments on the theory of defense,
the defendant’s veracity, or the defendant’s guilt, the prosecu-
tor crosses the line into misconduct only if the prosecutor’s
comments are expressions of the prosecutor’s personal beliefs
rather than a summation of the evidence. Id.
As indicated above, the State’s comments during closing,
when examined in the context of the full trial, were in refer-
ence to Cavitte’s multiple versions of her story that she told
law enforcement officers; thus, her credibility was called
into question. Such comments went to the veracity of her
defense and her credibility, and they were not prosecutorial
misconduct.
On appeal, Cavitte argues that the State’s comments through-
out the case infringed on her right against self-incrimination
and improperly shifted the burden to her to prove self-defense.
She asserts that the State’s comments were similar to com-
ments made by the State in State v. Lofquest, 227 Neb. 567,
418 N.W.2d 595 (1988), and State v. Rocha, 295 Neb. 716, 890
N.W.2d 178 (2017). We disagree.
Cavitte’s argument that the State improperly commented on
her post-Miranda silence regarding her defense of self-defense
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Cite as 28 Neb. App. 601is derived from the U.S. Supreme Court’s holding in Doyle
v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).
In Doyle, the petitioners were arrested for selling marijuana
and did not make any statements about their involvement in
the crime after receiving Miranda warnings. At trial, the peti-
tioners testified they were framed by a government informant.
Id. On cross-examination, the prosecutor repeatedly inquired
why the petitioners did not inform police of their explana-
tion for their offense following their arrest. Id. The Court
held that prosecutors were prohibited from using a defend­
ant’s post-Miranda silence for impeachment purposes. Doyle
v. Ohio, supra.The U.S. Supreme Court later distinguished Doyle from
scenarios where a defendant did not exercise his or her right
to remain silent, but, rather, provided law enforcement with
a different story than what was later testified to at trial. In
Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L.
Ed. 2d 222 (1980), the respondent was arrested and charged
with first degree murder after he was discovered driving the
victim’s stolen vehicle. After being arrested and receiving his
Miranda warning, the respondent informed officers that he
stole the vehicle from the street about 2 miles from a local
bus station. Anderson v. Charles, supra. However, at trial, the
respondent stated that he stole the unattended vehicle from a
parking lot directly next to the bus station. Id. The Court held
that it was not improper for the prosecutor to question the
respondent regarding his past inconsistent statements made
after receiving a Miranda warning. Anderson v. Charles, supra.Distinguishing Doyle, the Court stated:
Doyle bars the use against a criminal defendant of
silence maintained after receipt of governmental assur-
ances. But Doyle does not apply to cross-examination that
merely inquires into prior inconsistent statements. Such
questioning makes no unfair use of silence, because a
defendant who voluntarily speaks after receiving Miranda
warnings has not been induced to remain silent. As to the
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Cite as 28 Neb. App. 601subject matter of his statements, the defendant has not
remained silent at all.
Anderson v. Charles, 447 U.S. at 408.
The Court’s holding in Anderson v. Charles, supra, has
been applied in similar factual scenarios as the present case in
numerous federal and state courts. See, U.S. v. May, 52 F.3d
885 (10th Cir. 1995); Phelps v. Duckworth, 772 F.2d 1410(7th Cir. 1985) (defendant did not remain silent after Miranda
warning; thus, prosecutors’ questions about inconsistent stories
did not violate Doyle v. Ohio, supra); Lofton v. Wainwright,
620 F.2d 74 (5th Cir. 1980) (not improper for prosecutors to
use defendant’s post-Miranda statements to contradict incon-
sistent trial testimony); State v. McReynolds, 288 Kan. 318, 202
P.3d 658 (2009).
Here, Cavitte did not exercise her right to remain silent
after receiving the Miranda warning. Rather, she confessed to
Kreikemeier that she became angry with her husband when he
told her that he had been having an affair and “glazed” him
in the head. However, at trial, she testified that she was act-
ing in self-defense after he choked and punched her. Thus, her
inconsistent statements are not governed by Doyle v. Ohio,
supra, but by Anderson v. Charles, supra. Accordingly, the
State’s comments during closing argument and throughout trial
regarding Cavitte’s credibility and inconsistent stories do not
constitute misconduct.
[19] Although the district court denied Cavitte’s motion
for a new trial under an analysis of Doyle v. Ohio, supra, and
not Anderson v. Charles, supra, it reached the correct result
that the State’s comments were not improper. A correct result
will not be set aside merely because the trial court applied the
wrong reasoning in reaching that result. State v. Kolbjornsen,
295 Neb. 231, 888 N.W.2d 153 (2016).
In light of the above, Cavitte’s reliance on State v. Lofquest,
227 Neb. 567, 418 N.W.2d 595 (1988), in which the court found
the prosecutor’s references to the defendant’s post-Miranda
silence, specifically that the defendant did not inform law
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Cite as 28 Neb. App. 601enforcement of his story, which would have enabled them to
corroborate his version of events, were improper because they
violated Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L.
Ed. 2d 91 (1976), is misplaced. As iterated above, Cavitte did
not exercise her right to remain silent; thus, the State was not
impermissibly commenting on her post-Miranda silence, but,
rather, it was attacking her credibility due to the inconsistent
versions of the altercation she provided.
Cavitte’s reliance on State v. Rocha, 295 Neb. 716, 890
N.W.2d 178 (2017), as it relates to burden shifting is equally
misplaced. In Rocha, the Supreme Court found that the State’s
questioning of a witness regarding whether the defendant had
conducted his own independent DNA and fingerprint testing
was improper because it may have misled the jury to believe
the defendant had the burden to produce evidence to prove his
innocence. Here, the State did not place the burden on Cavitte
to prove that she acted in self-defense. The State merely
emphasized that the more credible version of her story was
what she told Kreikemeier immediately following the incident,
and not her version of the events told at trial.
Upon our review of the record, the district court did not
abuse its discretion when it denied Cavitte’s motion for a
mistrial and motion for a new trial because the State’s com-
ments at issue did not constitute misconduct. Further, because
the State did not commit prosecutorial misconduct, we do
not need to address whether Cavitte was prejudiced by the
alleged misconduct.
3. Inextricably Intertwined
Evidence
Cavitte next argues that the district court erred by admit-
ting evidence of her prior bad acts in violation of § 27-404.
Specifically, Cavitte argues that her statement that the abuse
between her and her husband was “50/50” was evidence of
prior bad acts, and should have been excluded under § 27-404.
We disagree.
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Cite as 28 Neb. App. 601Section 27-404(2) provides:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
[20] The Supreme Court has stated that § 27-404(2)’s list of
permissible purposes is not exhaustive. State v. Burries, 297
Neb. 367, 900 N.W.2d 483 (2017). Nonetheless, § 27-404(2)
does not apply to evidence of a defendant’s other crimes or
bad acts if the evidence is inextricably intertwined with the
charged crime. State v. Burries, supra. Inextricably inter-
twined evidence includes evidence that forms part of the
factual setting of the crime, or evidence that is so blended
or connected to the charged crime that proof of the charged
crime will necessarily require proof of the other crimes or
bad acts, or if the other crimes or bad acts are necessary for
the prosecution to present a coherent picture of the charged
crime. Id.In State v. Burries, supra, the defendant was convicted of
first degree murder for killing his girlfriend. In his appeal,
the defendant asserted that the trial court erred in admitting
evidence of an assault of the victim committed by him 2 years
before the murder. Id. The defendant argued that the evidence
was prohibited by § 27-404(2). The Supreme Court found
that the previous assault was inextricably intertwined with
the murder because it was part of the factual setting of the
murder. State v. Burries, supra. Specifically, the court found
that while the defendant was in prison for the prior assault, he
would call and threaten the victim; after being released from
prison, he continued to threaten the victim; the victim had
injuries consistent with an assault prior to her murder; and
the defendant told police that he burned his clothes after the
murder because they still had blood on them from the assault.
Id. Thus, the court concluded that the evidence of the prior
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Cite as 28 Neb. App. 601assault was necessary to present a coherent picture of the
murder. Id.In the case before us, which is similar to State v. Burries,
supra, the district court did not err in admitting Cavitte’s
statement that the abuse between her and her husband was
“50/50” because the statement was necessary to present a
coherent picture of the assault. The State’s theory of the case
was that Cavitte became angry after her husband informed
her that he had been having an affair, and she then assaulted
him. Cavitte’s theory at trial was that she and her husband
began arguing and that he then choked and punched her, which
led her to stab him. Therefore, the nature of the relationship
between Cavitte and her husband, including the fact that each
abused the other, was necessary to present a coherent picture
of the assault.
Cavitte argues that her case is akin to State v. Woods, 6 Neb.
App. 829, 577 N.W.2d 564 (1998), where this court found that
the trial court erred by admitting evidence that the defendant
had received controlled substances without a prescription on
previous occasions. This court found that the evidence fell
under the constraints of § 27-404 and that a hearing should
have been held outside the presence of the jury to determine
the admissibility of the evidence. Here, unlike in Woods,
Cavitte’s statement that the abuse between her and her husband
was “50/50” was necessary to understand the circumstances
of the assault at issue. It was not referring to a specific past
assault; rather, it was necessary to form a coherent picture of
the relationship between Cavitte and her husband.
Cavitte also urges this court to follow the Supreme Court’s
holding in State v. Ash, 286 Neb. 681, 838 N.W.2d 273(2013). In Ash, the court reversed the trial court’s receipt of
evidence that the defendant had sold the victim’s jacket 2 days
prior to his murder. The court determined that the selling of
the victim’s jacket was not part of the factual setting for the
murder and did not fall under the circumstances under which
the court had previously applied the inextricably intertwined
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Cite as 28 Neb. App. 601exception. Id. However, in the case at bar, Cavitte’s statement
that the abuse in the relationship occurred “50/50” was part
of the factual setting of the offense, because it offered insight
into the nature of Cavitte’s relationship with her husband;
therefore, Ash is not instructive for our analysis.
Based on the record before us, and given the factual simi-
larities between the present case and those of State v. Burries,
297 Neb. 367, 900 N.W.2d 483 (2017), we find that the dis-
trict court did not abuse its discretion in admitting Cavitte’s
statement that the abuse between her and her husband was
“50/50.”
VI. CONCLUSION
Having found no error in the orders and rulings challenged
by Cavitte herein, we affirm her conviction.
Affirmed.