State v. Clifton ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/24/2017 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. CLIFTON
Cite as 296 Neb. 135
State of Nebraska, appellee, v.
Jaquez B. Clifton, appellant.
___ N.W.2d ___
Filed March 24, 2017. No. S-15-1167.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a state-
ment based on its claimed involuntariness, including claims that law
enforcement procured it by violating 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), an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. Whether those facts meet con-
stitutional standards, however, is a question of law, which an appellate
court reviews independently of the trial court’s determination.
2. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.
An appellate court reviews de novo the facial validity of an attorney’s
race-neutral explanation for using a peremptory challenge as a question
of law. It reviews for clear error a trial court’s factual determination
regarding whether a prosecutor’s race-neutral explanation is persuasive
and whether the prosecutor’s use of a peremptory challenge was pur-
posefully discriminatory.
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. Juries: Prosecuting Attorneys. A prosecutor is ordinarily entitled to
exercise permitted peremptory challenges for any reason at all, if that
reason is related to his or her view concerning the outcome of the case.
5. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining
whether a prosecutor impermissibly struck a prospective juror based on
race is a three-step process. In this three-step process, the ultimate bur-
den of persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike.
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STATE v. CLIFTON
Cite as 296 Neb. 135
6. Juries: Discrimination: Prosecuting Attorneys. Whether a prosecu-
tor’s reasons for using a peremptory challenge are race neutral is a ques-
tion of law.
7. ____: ____: ____. In determining whether a prosecutor’s explanation for
using a peremptory challenge is race neutral, a court is not required to
reject the explanation because it is not persuasive, or even plausible; it
is sufficient if the reason is not inherently discriminatory.
8. ____: ____: ____. A prosecutor’s intuitive assumptions, inarticulable
factors, or even hunches can be proper bases for rejecting a potential
juror, so long as the reasons are not based on impermissible group bias.
9. Confessions: Miranda Rights: Police Officers and Sheriffs. Before
the police are under a duty to cease an interrogation, the suspect’s
invocation of the right to cut off questioning must be unambiguous,
unequivocal, or clear.
10. ____: ____: ____. To invoke the right to cut off questioning, the sus-
pect must articulate his or her desire with sufficient clarity such that a
reasonable police officer under the circumstances would understand the
statement as an invocation of the Miranda right to remain silent.
11. Confessions. A suspect need not utter a talismanic phrase to invoke his
or her right to silence.
12. Trial: Evidence: Due Process. The purpose of the rule in Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), is not
to displace the adversary system as the primary means by which truth is
uncovered, but to ensure the disclosure of evidence of such significance
that, if suppressed, would deprive the defendant of a fair trial.
Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, Cindy
A. Tate, and Mikki C. Jerabek, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
I. NATURE OF CASE
Jaquez B. Clifton appeals his convictions for first degree
murder and use of a firearm to commit a felony in relation to
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STATE v. CLIFTON
Cite as 296 Neb. 135
the death of Frank Sanders on July 20, 2014. Clifton asserts
that the prosecution impermissibly struck prospective jurors
on the basis of race and that he should be accorded a new
trial under Batson v. Kentucky.1 He further asserts that his
statements to law enforcement should have been suppressed
as obtained in violation of Miranda v. Arizona,2 because the
Miranda warning was not given until after the interroga-
tion had begun and because he asserted his right to cut off
questioning by saying, “I can’t.” Lastly, Clifton asserts that
the court should have granted a mistrial. He claims the court
allowed witness testimony concerning events that the witness
had not revealed in prior statements to the police and which
were allegedly revealed to the prosecution before trial, but
had not been disclosed to the defense as required by Brady
v. Maryland.3
II. BACKGROUND
1. Voir Dire and Clifton’s
Batson Challenge
At the close of jury selection, defense counsel raised a
Batson challenge. Although the race or heritage of the venire
was not stipulated or otherwise formally put into evidence,
defense counsel pointed out during argument before the dis-
trict court that three of the four African-American jurors in the
venire pool were struck by the State’s peremptory challenges:
prospective jurors Nos. 8, 13, and 14. The prosecution prof-
fered nondiscriminatory reasons for the strikes.
(a) Juror No. 13
Juror No. 13 was the prosecution’s third strike. The pros-
ecutor explained that he did not believe juror No. 13 could
be “ultimately independent” and disregard her past experience
1
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
3
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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with drug addiction and alcoholism, including drug transac-
tions that were similar to those that occurred as part of the
charges against Clifton.
During voir dire, juror No. 13 stated that she worked full
time both as a program specialist with the elderly and as
a cook. In her work at an adult daycare, she worked with
people with mental health issues. She taught them qualita-
tive living skills. Her second job was a cook for a homeless
shelter and the “Hero program.” In the late 1980’s, she took
a class in business law, with the thought of pursuing a career
as a legal secretary. She found that legal coursework was not
for her. Juror No. 13 was recovering from 25 years of alco-
holism and 23 years of crack addiction. She had been sober
for 6 years and agreed that many crimes are “fueled by the
addiction.”
(b) Juror No. 8
Juror No. 8 was the State’s seventh strike. The prosecution
was concerned about her experience with the juvenile court and
as a therapist who might have sympathy for young offenders
like Clifton. The prosecutor noted that juror No. 8 would be
aware of the possible penalties at issue in the trial and might
resist the punishment demanded by statute, believing that
Clifton should be reformed instead.
Juror No. 8 was a mental health therapist, and in that capac-
ity, she was in juvenile court “quite often.” She worked with
the county attorney’s office and the public defender’s office in
her advocacy of the juveniles or their families. She was sub-
poenaed “quite often,” and she often has to call police officers
when she has an unruly or noncompliant child.
Juror No. 8 was friends with two other members of the
venire, jurors Nos. 3 and 14. Juror No. 3 ultimately was on the
jury panel. With regard to juror No. 3, juror No. 8 said that
they “disagree all the time.” She knew one of the potential wit-
nesses, whom she described as a friend of her ex-husband and
a former coworker.
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STATE v. CLIFTON
Cite as 296 Neb. 135
(c) Juror No. 14
Juror No. 14 was the prosecution’s last strike. The prosecu-
tor explained that he preferred the two other remaining jurors
in the venire to juror No. 14, because juror No. 14 did not
appear to be forthcoming in volunteering information. Based
on a comparison of the answers of juror No. 14 to the answers
of the other two remaining jurors, and the fact that the other
two remaining jurors appeared younger, the prosecutor had
the impression that “if [the other two remaining jurors] were
to hear the votes of other people, they wouldn’t raise a big
ruckus or problem and they would kind of go along to get
along.” Juror No. 14 worked in sales and was originally from
Chicago, Illinois.
Defense counsel generally asserted that Caucasian jurors
that were selected had “answers [that] were no more damag-
ing than . . . any of the other potential jurors that were in
the pool.”
(d) Batson Challenge Denied
The district court found that Clifton had made a prima facie
showing that the prosecutor had exercised peremptory chal-
lenges on the basis of race, but found that Clifton had failed
to sustain his burden to show that the State’s proffered reasons
for striking the jurors were a pretext for racial discrimination.
Accordingly, the court denied the challenge.
2. Clifton’s Statements and
Motion to Suppress
Before trial, Clifton moved to suppress all of his statements
to law enforcement. Clifton was questioned in custody for
approximately 21⁄2 hours. Det. Ryan Davis began the question-
ing with introductions. At this point, Clifton had not been
given Miranda warnings.
Clifton spelled his name and gave his address and telephone
number. Davis and Clifton discussed Clifton’s job status and
education. Davis asked Clifton if he knew why he was being
questioned. Clifton stated that he did not. Davis explained
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STATE v. CLIFTON
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that he was doing some followup regarding an incident that
occurred on “Sunday,” giving the general location of Sanders’
residence. Davis asked Clifton if he had any idea what he
was talking about. Clifton said he did not, and stated that his
mother had passed away some 3 weeks prior and that he was
on probation. Further discussion ensued about Davis’ proba-
tion status and his mother’s passing away. When Clifton men-
tioned he had a son “on the way,” Davis inquired about the
due date.
Davis proceeded to question Clifton in more detail about his
education. When Clifton explained that he did not finish 12th
grade because he was “running from different places” and was
in the foster care system, Davis asked Clifton further questions
about that history. During this time, Clifton did not make any
statements regarding the night of July 20, 2014.
After about 5 minutes, Davis read Clifton his Miranda
rights. After reading Clifton his Miranda rights, Davis began
asking Clifton questions directly related to the events of July
20, 2014. At first, Clifton denied having left his house that
evening. After further questioning, Clifton acknowledged that
he was at the address in question on the night in question,
but denied pulling the trigger. Clifton said “[s]ome dude . . .
wanted to buy some weed”; Clifton claimed he did not know
the names of the people he was with and had never seen
them before.
Davis asked Clifton to walk him through what happened
that night—to tell Clifton’s side of the story. Clifton responded
that he wanted to talk to his son. Davis stated that he could
not facilitate that “right at that second” and continued, “we’ve
come to a point where you’ve admitted being there, and so I
would think you would want to go the one step further and
explain what happened so I don’t have to listen to everybody
else’s version of it. Doesn’t that make sense?”
Clifton responded, “It do, but I can’t tell you.” Davis asked
why, and Clifton said, “I can’t, I just can’t.” Davis asked, “Did
you guys go there to rob him?” Clifton said he did not. Clifton
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STATE v. CLIFTON
Cite as 296 Neb. 135
continued to answer a few more questions about the night in
question, and then admitted that “[t]hey” went to Sanders’ resi-
dence to rob him.
When Davis asked Clifton to tell him who “they” were,
Clifton said, “I can’t because I don’t want anybody telling on
me.” Davis stated that it was Clifton’s future and that it was
his opportunity to walk him through this. Clifton responded,
“I can’t.” Davis responded, “Yes, you can.” Davis encouraged
Clifton to at least tell him who he was with on the night of the
shooting. Clifton exclaimed, “Ugh,” and when asked if he had
wanted “that man to die,” Clifton said, “I didn’t want that man
to die.”
Davis explained there was no reason for Clifton to cover
for anybody. Clifton stated that while at Sanders’ residence,
he was told to hold the door open. Clifton said he was holding
the front door while another person went to a back room to
buy marijuana. He then heard a gunshot and “ran all the way
back home.”
Clifton continued to refuse to name the other parties. He
stated that he was “ready to go, man. I wanna go talk to my
kids.” When Davis stated that he understood and that they
were almost done, Clifton responded, “I ain’t got nothing to
say, man. I got nothing else to say.” After some back and forth,
Davis’ continued attempts to get Clifton to reveal who was
with him the night of the murder, Clifton said he was “ready
to leave now” and “I wanna be done.” When Davis pressed
Clifton again to tell him who was with him, Clifton said he
could not talk anymore and stated, “I’m done talking about it.
We did enough talking.”
The court found through the statements, beginning with “I
ain’t got nothing to say, man. I got nothing else to say,” Clifton
had invoked his right to remain silent. It found that any state-
ments following these invocations were inadmissible.
At trial, the jury heard Clifton’s admission that he had gone
to Sanders’ house with two other unknown individuals on the
night in question. The jury heard Clifton’s statements that he
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STATE v. CLIFTON
Cite as 296 Neb. 135
was holding the door when he heard a gunshot and he “didn’t
want that man to die.”
3. Other Evidence at Trial
In addition to Clifton’s statements to law enforcement made
before the point in which the court found he had invoked
his right to cut off questioning, the prosecution presented
the testimony of Rico Larry; Absalom Scott; Jacklyn Harris,
Sanders’ live-in girlfriend; neighbors; law enforcement; and
forensic experts.
(a) Jacklyn Harris
Harris lived with Sanders on the main floor of a house
which was converted to four separate apartments. She testi-
fied that she had hosted a barbeque the afternoon and into the
evening of July 20, 2014. Around 10:30 p.m., all the guests
had left, and about 11 p.m., she was in the kitchen when Scott
knocked on a screen door. She recognized Scott through the
glass on the screen door as one of Sanders’ regular customers
and yelled to Sanders that Scott was there to see him.
Scott and “another guy” entered and walked past her to a
back bedroom where Sanders was located. A few seconds later,
she heard a gunshot. Immediately thereafter, Scott and another
man came running past her and out the front door. Harris tes-
tified that Sanders then staggered into the kitchen, where he
quickly bled to death. Harris could not find the cell phone she
shared with Sanders. She went to her neighbor’s apartment
for help.
(b) Sanders’ Neighbors’ Testimony
Sanders’ upstairs neighbor testified that he heard running
and looked out his window and saw two men fleeing between
two houses. Soon thereafter, Harris knocked on his door, say-
ing that Sanders had been shot and asking to use the telephone.
Sanders’ downstairs neighbor described that late on July 20,
2014, he heard a scuffling noise, then a momentary quiet, fol-
lowed by a “boom.”
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STATE v. CLIFTON
Cite as 296 Neb. 135
(c) Absalom Scott
Scott testified that he, Larry, and Clifton went to Sanders’
residence on the night of July 20, 2014. Scott stated he and
Sanders bought and sold, or traded, drugs to one another.
Scott provided crack cocaine, and Sanders provided mari-
juana. Usually Scott would “just show up,” normally accom-
panied by Larry, and the transactions usually took place in the
kitchen or the living room. The transactions did not normally
take place in the back bedroom, which was accessed through
the kitchen.
On the night of July 20, 2014, Scott and Larry took Clifton
to Sanders’ residence because Clifton wanted to buy some
marijuana. According to Scott, at some point in the evening
prior to going to Sanders’ house, Clifton had stated that he
wanted to rob somebody. Scott testified that he thought Clifton
was just “[t]alking crazy” and that he “didn’t pay no mind to
it.” Scott knew that the police were watching Sanders’ house,
because Scott had participated in several “controlled buys”
for the police around that time. As a result, they parked in the
alley. Scott testified that Harris opened the door of her resi-
dence after they knocked and that they all entered.
Sanders was lying on the couch. Harris went to the kitchen.
Scott said that he and Larry sat on the couch with Sanders,
while Clifton stood by the front door. Scott informed Sanders
that Clifton wished to purchase a pound of marijuana, and
upon Sanders’ request, Clifton pulled out his purchase money
and counted it in front of Sanders. Scott saw Clifton count out
approximately $2,500.
Sanders went to the back room, and about 15 seconds later,
Scott saw Clifton follow him. Ten seconds after that, Sanders
called to Scott to “‘[c]ome here.’” Scott got as far as the hall-
way to the back room, where he found Clifton pointing a gun
at Sanders. Scott observed Sanders standing with his hands at
his sides, and he heard Sanders ask Clifton, “‘What are you
doing?’” Scott testified that it did not appear that Sanders had
a weapon. Approximately 3 seconds after entering the hallway,
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Cite as 296 Neb. 135
Clifton shot Sanders. Scott saw Sanders fall forward on top of
Clifton. Scott said he took off running. Larry and Clifton fol-
lowed shortly thereafter, and the three drove away.
Scott testified that while they were driving away, Clifton
told them that Sanders had reached for Clifton’s gun. Scott
said that Clifton also threatened him that if he told any-
one about the shooting, Clifton would kill Scott and Scott’s
girlfriend.
The prosecutor asked Scott if he had any contact with
Clifton in the days after the shooting and before Scott’s arrest.
Scott stated the day following the shooting, he had a conver-
sation with Clifton. This testimony led to defense counsel’s
making a Brady objection that will be described in more detail
under the subheading entitled “A lleged Brady Violation.”
The Brady objection was overruled, and Scott proceeded to
testify that the day after the shooting, Clifton told Scott that
he and Larry had nothing to worry about because Clifton
“did it.”
On cross-examination, Scott admitted that on July 20,
2014, he deleted several pictures from his cell phone that
depicted him holding a 9-mm semiautomatic weapon. Scott
testified that, as a convicted felon, he was not supposed to
possess a firearm. He claimed the weapon was not his. Scott
admitted that he originally lied to law enforcement about the
events in question, stating that two strangers had followed
him into the house and shot Sanders while Scott was sitting
on the couch.
(d) Rico Larry
Larry testified he went with Scott and Clifton to Sanders’
house the evening of July 20, 2014, to buy some marijuana.
He and Scott had visited Sanders many times before for the
same purpose. Harris let them into Sanders’ residence. Larry
stated that he and Scott sat down on the couch next to Harris,
while Clifton remained standing. Larry and Scott told Clifton
they each wished to buy “a ten bag.” Clifton said he wanted to
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buy an ounce. Sanders said something about seeing new faces,
referring to Clifton, and asked to see the money. Clifton pulled
out “a bunch of twenties.”
According to Larry, Clifton then followed Sanders to the
back room, and Scott followed after Clifton. Larry testified
that, soon thereafter, Clifton called out, “‘“Come and get it.”’”
Larry started walking toward the back room. As he did so, he
heard “tussling” and then a gunshot. Larry saw Sanders fall on
top of Clifton and saw blood. Larry took off running with Scott
behind him. Larry heard a loud noise, like Scott had “busted
the door.”
Larry, Scott, and Clifton entered the vehicle they had driven
to Sanders’ residence, and left the scene. Larry testified that
Clifton told them that he did not know why Larry and Scott
were scared, because Clifton was the one who “did the M.”
Larry explained that to do “the M” is to shoot or kill some-
body. According to Larry, Clifton said that he would have
shot Sanders more times, but the gun jammed. Larry testified
that Clifton threatened him and Scott if they told anyone what
had happened.
Larry stated that after Scott drove to a house and left the
vehicle to conduct a drug transaction, Clifton “jumped into
the driver’s seat,” and the two of them left. While Clifton
was driving, he wiped a cell phone off and threw it out the
window. Clifton told Larry that they “ain’t gonna be able to
call nobody.” Larry testified that when Clifton later exited
the vehicle, he thought he saw Clifton wearing a gun in
his waistband.
(e) Forensic Evidence
The prosecution adduced forensic evidence that Sanders’
blood was found near the rear passenger door handle of
the vehicle that Larry, Scott, and Clifton drove to Sanders’
residence on July 20, 2014. Sanders’ autopsy revealed that
Sanders was killed by a single gunshot to the chest. The pros-
ecution presented evidence that the bullet was either a 9 mm
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or a .38 caliber. A firearms examiner testified that if it was a
9 mm, a casing would have been ejected after the bullet was
fired, unless the gun had jammed. The prosecution presented
evidence from law enforcement that no casings were found
during the search of Sanders’ residence.
4. A lleged Brady Violation
During Scott’s testimony, defense counsel moved to exclude
any testimony about his conversation with Clifton the day
after the shooting. Counsel alleged the prosecution failed to
disclose before trial Scott’s statements regarding this con-
versation. The defense claimed this was a violation of Brady
v. Maryland.4 Defense counsel noted that Scott had failed to
mention this conversation in his deposition testimony or in his
statements to police regarding any conversation with Clifton
the day after the murder to the effect that Clifton told Scott
that he “did it.”
Defense counsel argued that the prosecutor must have
known about the alleged conversation, because the prosecutor
asked whether any contact was made with Clifton in the days
following the shooting. Out of the presence of the jury, defense
counsel was permitted to examine Scott concerning any prior
mention of the conversation to the prosecution. Scott said he
had met with the prosecutor three times. Defense counsel did
not inquire in his questioning of Scott about what Scott might
have said to the prosecution during those meetings.
Defense counsel did not enter into evidence the prior depo-
sition testimony of Scott, or the police interviews with Scott,
wherein Scott reportedly failed to mention this conversation
with Clifton. Defense counsel did not ask for a continuance in
light of the allegedly late disclosure.
The district court concluded that Brady did not apply and
that defense counsel was free to cross-examine Scott about his
failure to disclose this conversation in his deposition.
4
Brady v. Maryland, supra note 3.
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During cross-examination before the jury, Scott testified
that he could not recall if he had previously reported in his
interviews with law enforcement or in his deposition that he
had a conversation with Clifton the day after the shooting. But
he admitted that he had mentioned it to the prosecution the
week of trial.
Defense counsel’s motion for mistrial based on the alleged
Brady violation was overruled.
5. Verdict and Sentence
The jury found Clifton guilty of one count of first degree
murder and one count of use of a firearm to commit a felony.
Clifton was sentenced to life imprisonment for first degree
murder and to a consecutive term of 25 to 30 years’ imprison-
ment for use of a firearm to commit a felony. He appeals.
III. ASSIGNMENTS OF ERROR
Clifton assigns that the district court erred by (1) fail-
ing to grant his motion to suppress his statements made to
law enforcement, in violation of the constitutional safeguards
afforded by Miranda; (2) denying Clifton’s Batson challenge;
and (3) denying Clifton’s motion for mistrial that alleged a
Brady violation.
IV. STANDARD OF REVIEW
[1] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforce-
ment procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, an appellate court
applies a two-part standard of review.5 Regarding historical
facts, an appellate court reviews the trial court’s findings for
clear error. Whether those facts meet constitutional standards,
however, is a question of law, which an appellate court reviews
independently of the trial court’s determination.6
5
State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014).
6
Id.
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[2] An appellate court reviews de novo the facial validity of
an attorney’s race-neutral explanation for using a peremptory
challenge as a question of law. It reviews for clear error a trial
court’s factual determination regarding whether a prosecu-
tor’s race-neutral explanation is persuasive and whether the
prosecutor’s use of a peremptory challenge was purposefully
discriminatory.7
[3] An appellate court will not disturb a trial court’s deci-
sion whether to grant a motion for mistrial unless the court has
abused its discretion.8
V. ANALYSIS
1. Batson Challenge
[4] We first address whether the district court erred in over-
ruling Clifton’s Batson challenge to the racial makeup of the
jury. A prosecutor is ordinarily entitled to exercise permitted
peremptory challenges for any reason at all, if that reason is
related to his or her view concerning the outcome of the case.9
However, the U.S. Supreme Court in Batson v. Kentucky held
that the Equal Protection Clause forbids the prosecutor to chal-
lenge jurors solely because of their race.10
[5] Determining whether a prosecutor impermissibly struck
a prospective juror based on race is a three-step process.11
In this three-step process, the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from,
the opponent of the strike.12
First, a defendant must make a prima facie showing that
the prosecutor exercised a peremptory challenge because of
7
State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
8
State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016).
9
Batson v. Kentucky, supra note 1.
10
Id.
11
State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).
12
See id.
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race. Second, assuming the defendant made such a showing,
the prosecutor must offer a race-neutral basis for striking the
juror.13 And third, the trial court must determine whether the
defendant has carried his or her burden of proving purposeful
discrimination.14
Once the trial court has decided the ultimate question of
intentional discrimination, however, the question on appeal
is only whether the prosecutor’s reasons were facially race-­
neutral and whether the trial court’s final determination regard-
ing purposeful discrimination was clearly erroneous.15
[6] Whether a prosecutor’s reasons for using a peremptory
challenge are race neutral is a question of law.16 We conclude
that the prosecutor’s stated reasons for exercising his peremp-
tory strikes were race neutral.
The prosecutor explained he struck juror No. 13 because of
concerns she would be unable to set aside her past experience
with drug addiction and participation in transactions similar to
those surrounding the shooting. He struck juror No. 8 because
her experience with juvenile court and as a therapist might
give her sympathy for Clifton as a young offender. The pros-
ecutor struck juror No. 14 because, compared to the other two
remaining prospective jurors, juror No. 14 seemed the least
forthcoming and was the oldest and he might be more likely to
cause conflict in the deliberative process.
[7] In determining whether a prosecutor’s explanation for
using a peremptory challenge is race neutral, a court is not
required to reject the explanation because it is not persuasive,
or even plausible; it is sufficient if the reason is not inherently
discriminatory.17 Only inherently discriminatory explanations
13
Id.
14
Id.
15
See id.
16
See State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
17
See id.
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are facially invalid.18 The prosecutor’s reasons were not inher-
ently discriminatory.
We turn next to the district court’s finding that these race-
neutral explanations were not pretexts for discrimination. The
third step of the Batson inquiry requires the trial court to
evaluate the persuasiveness of the justification proffered by
the prosecutor; it ultimately determines whether the explana-
tion was pretext for discrimination.19 A trial court’s determina-
tion that the prosecutor’s race-neutral explanation should be
believed frequently involves its evaluation of a prosecutor’s
credibility, which requires deference to the court’s findings
absent exceptional circumstances.20
In determining whether a defendant has established pur-
poseful discrimination in the use of a peremptory challenge,
the act of striking jurors of a particular race takes on meaning
only when coupled with other information, such as the racial
composition of the venire, the race of others struck, or the
voir dire answers of those who were struck compared to the
answers of those who were not struck.21 “‘Similarly, the pros-
ecutor’s questions and statements during voir dire examina-
tion and in exercising his challenges may support or refute an
inference of discriminatory purpose.’”22
We find no evidence in the record of any questions or state-
ments during voir dire indicating a discriminatory purpose.
And we note that defense counsel failed to make an offer
of proof of the racial composition of the venire. But even
18
State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). See, also, Hernandez
v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991).
19
See, Hernandez v. New York, supra note 18; State v. Thorpe, supra note
18; Jacox v. Pegler, 266 Neb. 410, 665 N.W.2d 607 (2003).
20
See State v. Johnson, supra note 16.
21
State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), disapproved on
other grounds, State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
22
Jacox v. Pegler, supra note 19, 266 Neb. at 418, 665 N.W.2d at 614
(quoting Batson v. Kentucky, supra note 1).
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accepting as true defense counsel’s assertions as to the race of
the venire, we find no reason to conclude that the district court
clearly erred in finding that there was no pretext.
In considering a Batson challenge, we may consider whether
the prosecutor’s criterion has a disproportionate impact on a
particular race.23 And in determining whether there is a suf-
ficient pattern of peremptory strikes to support an inference
of discrimination, we have recognized the following factors as
relevant: (1) whether members of the relevant racial or ethnic
group served unchallenged on the jury and whether the strik-
ing party struck as many of the relevant racial or ethnic group
from the venire as it could, (2) whether there is a substantial
disparity between the percentage of a particular race or ethnic-
ity struck and the percentage of its representation in the venire,
and (3) whether there is a substantial disparity between the
percentage of a particular race or ethnicity struck and the per-
centage of its representation on the jury.
According to Clifton’s factual assertions as to the racial
makeup of the venire, one African-American juror served on
the jury out of four African-Americans in the venire. Thus,
the prosecutor did not strike as many of the relevant racial
group from the venire as he could. Indeed, Clifton does not
specifically argue that he proved pretext by demonstrating the
disproportionate impact of the prosecutor’s criterion or a suf-
ficient pattern of peremptory strikes to support an inference
of discrimination.
Clifton instead compares the answers of the struck jurors
and the nonstruck jurors during voir dire. Clifton argues that
answers of the jurors who were struck (and who were African-
American) were largely indistinguishable from the nonstruck
jurors with respect to the proffered reasons for striking the
African-American prospective jurors. If a prosecutor’s prof-
fered reason for striking an African-American panelist applies
just as well to an otherwise-similar non-African-American
23
See State v. Thorpe, supra note 18.
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who is permitted to serve, that is evidence to be considered in
the third step of the Batson analysis.24
However, the same factors used in evaluating a juror may
be given different weight depending on the number of peremp-
tory challenges a lawyer has, and a strict comparison analysis
may not properly take into account the variety of factors and
considerations that may be part of a lawyer’s decision to
select certain jurors while challenging others that may appear
to be similar.25
Concerning juror No. 8, Clifton points out other jurors who
had experience in the criminal justice system. But, in compari-
son to juror No. 8, whose experience may have made her more
sympathetic to relatively young defendants, the experience of
the nonstruck jurors was clearly favorable to the prosecution.
The jurors Clifton claims were comparable to juror No. 8
had positive experiences with law enforcement, either having
taken classes in criminal justice with a view toward becoming
a police officer or volunteering for law enforcement. This is
distinguishable from juror No. 8’s familiarity as an advocate
for her therapy clients in the justice system.
As for juror No. 14, Clifton points to other jurors he
believes were not forthcoming. But we find it is impossible to
determine from the cold record the extent that juror No. 14’s
demeanor was more or less forthcoming than the two other
remaining prospective jurors at the time the prosecutor used its
last peremptory strike for juror No. 14.
Clifton’s attack on the prosecutor’s race-neutral explana-
tions for striking prospective jurors Nos. 13 and 14 is not
based on any explicit comparison to other nonstruck jurors.
Instead, it is based upon his assertions that the prosecutor’s
reasons were illogical, speculative, ignoble, or inconsistent
24
See State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated
on other grounds, State v. Thorpe, supra note 18. See, also, Miller-El v.
Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); State v.
Starks, 3 Neb. Ct. App. 854, 533 N.W.2d 134 (1995).
25
State v. Robinson, supra note 24.
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with the prospective jurors’ assurances that they would be
impartial. For example, Clifton asserts that allowing the pros-
ecution to strike juror No. 14 because of his apparent “unwill-
ingness to follow the crowd” would make a “mockery” of the
voir dire process, which is aimed at finding fair and impar-
tial jurors.26
[8] But the question before us is whether the district court
clearly erred in finding that the prosecution’s race-neutral
explanations for their peremptory strikes were genuine and not
pretextual. We may consider the rationality of the prosecutor’s
reasons in our inquiry. As the U.S. Supreme Court explained,
“implausible or fantastic justifications may (and probably
will) be found to be pretexts for purposeful discrimination.”27
However, “the ultimate inquiry for the [trial court] is not
whether counsel’s reason is suspect, or weak, or irrational,
but whether counsel is telling the truth in his or her assertion
that the challenge is not race-based.”28 A prosecutor’s intui-
tive assumptions, inarticulable factors, or even hunches can
be proper bases for rejecting a potential juror, so long as the
reasons are not based on impermissible group bias.29
We conclude, based on our examination of the record, that
the district court did not clearly err in finding the prosecutor’s
race-neutral explanations for striking African-American jurors
were persuasive and that the use of the peremptory challenges
was not purposefully discriminatory. In applying this clearly
erroneous standard of review, we recognize the pivotal role that
the trial court plays in evaluating Batson claims. The best evi-
dence of discriminatory intent “‘“often will be the demeanor of
26
Brief for appellant at 38.
27
Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L. Ed. 2d 834
(1995) (per curiam).
28
U.S. v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir. 1993). See, also, e.g.,
U.S. v. Thompson, 735 F.3d 291 (5th Cir. 2013); Taylor v. State, 279 Ga.
706, 620 S.E.2d 363 (2005).
29
See, U.S. v. Thompson, supra note 28; People v. Watson, 43 Cal. 4th 652,
182 P.3d 543, 76 Cal. Rptr. 3d 208 (2008).
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the attorney who exercise[d] the challenge.”’”30 Such credibil-
ity determinations lie within the peculiar province of the trial
judge and, “‘“in the absence of exceptional circumstances,”’”
require deference to the trial court.31
2. Motion to Suppress
We turn next to Clifton’s arguments that his statements to
law enforcement should have been suppressed. The court sup-
pressed some of Clifton’s statements made after the point at
which the court determined Clifton had exercised his right to
cut off questioning. Clifton argues that the entirety of his state-
ment should have been deemed involuntary under Missouri
v. Seibert.32 Alternatively, Clifton argues that he asserted his
right to cut off questioning at a point earlier than that deter-
mined by the district court.
(a) Warnings in Midst
of Interrogation
In Missouri v. Seibert, the U.S. Supreme Court was con-
fronted with a police “question-first” protocol whereby a sus-
pect was interrogated without Miranda warnings until the
suspect confessed, after which point, the officer would give
Miranda warnings, ask for a waiver, and get the suspect
to repeat the pre-Miranda confession.33 The Court explained
that the underlying assumption with the question-first tactic
was that
with one confession in hand before the warnings, the
interrogator can count on getting its duplicate, with tri-
fling additional trouble. Upon hearing warnings only in
30
State v. Nave, supra note 11, 284 Neb. at 487, 821 N.W.2d at 732 (quoting
Snyder v. Louisiana, 552 U.S. 472, 128 S. Ct. 1203, 170 L. Ed. 2d 175
(2008)).
31
Id.
32
Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643
(2004).
33
Id., 542 U.S. at 606.
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the aftermath of interrogation and just after making a
confession, a suspect would hardly think he had a genu-
ine right to remain silent, let alone persist in so believ-
ing once the police began to lead him over the same
ground again.34
In the plurality opinion, the Court held that such tactic effec-
tively threatens to thwart the purpose of Miranda by reducing
the risk that a coerced confession would be admitted.
The Court reaffirmed its holding in Oregon v. Elstad,35
rejecting a blanket “‘cat out of the bag’” theory to a volun-
tary admission obtained in the arguably innocent neglect of
Miranda at the defendant’s home before taking him to the
station.36 The Court rejected the defendant’s argument that his
subsequent, post-Miranda confession at the station house was
tainted by the earlier unwarned admission. Instead, the Court
found the confession admissible. The Court listed a series of
facts that would bear on whether Miranda warnings delivered
midstream of an interrogation could be effective enough to
accomplish their object of presenting a genuine choice to the
suspect of whether to follow up on an earlier admission: (1)
the completeness and detail of the questions and answers in
the first round of interrogation, (2) the overlapping content of
the two statements, (3) the timing and setting of the first and
the second, (4) the continuity of police personnel, and (5) the
degree to which the interrogator’s questions treated the second
round as continuous with the first.37
Subsequently, in Bobby v. Dixon,38 the U.S. Supreme Court
addressed a situation where the police decided not to pro-
vide the defendant with Miranda warnings for fear that he
would not speak. In the unwarned interrogation, the defendant
34
Id., 542 U.S. at 613.
35
Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).
36
Missouri v. Seibert, supra note 32, 542 U.S. at 615.
37
Id.
38
Bobby v. Dixon, 565 U.S. 23, 132 S. Ct. 26, 181 L. Ed. 2d 328 (2011).
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claimed the victim had given him permission to obtain an
identification card in the victim’s name and endorse a check
written out to the victim for the proceeds of the sale of the
victim’s car. The defendant denied stealing the car and denied
knowing the victim’s whereabouts. Approximately 4 hours
later, another interrogation took place with Miranda warnings,
after the defendant indicated he wished to talk. In this inter-
rogation, the defendant confessed to murdering the victim and
stealing his car.
The Court held that the effectiveness of the Miranda warn-
ing was not impaired by the sort of two-step interrogation
technique condemned in Seibert. In addition to pointing out
that the time and intervening events precluded a “continuum”
of warned and unwarned interrogations, the Court reasoned
that “there is no concern here that police gave [the defend­
ant] Miranda warnings and then led him to repeat an earlier
murder confession, because there was no earlier confes-
sion to repeat.”39 Nor, the Court pointed out, was there any
evidence that police used the defendant’s earlier admission
of forgery to induce him to waive his right to silence later.
The Court distinguished these facts from the facts in Seibert,
where “the suspect’s first, unwarned interrogation left ‘little,
if anything, of incriminating potential left unsaid,’ making it
‘unnatural’ not to ‘repeat at the second stage what had been
said before.’”40
Thus, essential to a Miranda violation under Seibert is
an inculpatory prewarning statement that somehow overlaps
with statements made in the postwarning interrogation. In
State v. DeJong,41 we accordingly rejected the defendant’s
argument that her confession was involuntary because the
“‘cat was already out of the bag’” when the police induced
39
Id., 565 U.S. at 31 (emphasis supplied).
40
Id. (quoting Missouri v. Seibert, supra note 32).
41
State v. DeJong, supra note 5, 287 Neb. at 889, 845 N.W.2d at 878.
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admissions after she had invoked her right to cut off question-
ing. We reasoned that during a subsequent interrogation, she
was not explicitly attempting to clarify or explain her previ-
ously voiced inadmissible statements.42 Likewise, in State v.
Juranek,43 we held that the defendant’s post-Miranda state-
ment was voluntary despite a pre-Miranda admission, because
we could not say that “the pre-Miranda interrogation left
little to be said.” We noted that the pre-Miranda questioning
had not touched upon key points in the investigation, which
we found distinguishable from Seibert, where there was a
“systematic, exhaustive” pre-Miranda interrogation, “‘little,
if anything, of incriminating potential left unsaid,’”44 and a
post-Miranda interrogation that “‘cover[ed] the same ground
a second time.’”45
Clifton focuses on the continuum between the unwarned
and warned questioning and the number of questions presented
before Miranda warnings were given. He ignores the fact
that the pre-Miranda questioning was not intended to induce
inculpatory statements by the defendant. In the 5 minutes of
pre-Miranda questioning at issue, the questions concerned the
correct spelling of Clifton’s name and other information such
as his address, job status, and educational background. During
this time, Davis also expressed his condolences for Clifton’s
recent loss of his mother and inquired about the upcom-
ing birth of Clifton’s child. “Interrogation” for purposes of
Miranda includes “‘either express questioning or its functional
equivalent.’”46 The functional equivalent of express question-
ing refers to “any words or actions on the part of the police
42
See State v. DeJong, supra note 5.
43
State v. Juranek, 287 Neb. 846, 860, 844 N.W.2d 791, 804 (2014).
44
Id. at 860, 844 N.W.2d at 803.
45
Id. at 858, 844 N.W.2d at 802.
46
Rhode Island v. Innis, 446 U.S. 291, 309, 100 S. Ct. 1682, 64 L. Ed. 2d
297 (1980).
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(other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit
an incriminating response from the suspect.”47 The only pre-
Miranda question Davis asked that was reasonably likely to
elicit an incriminating response was whether Clifton knew why
he was being questioned. As in Juranek, there was in this pre-
Miranda questioning much ground left to be covered.
Most importantly, Clifton also ignores the fact that he gave
no incriminating statements before being given Miranda warn-
ings. In no manner was Clifton repeating at the second stage
what had been said before. Due to the nature of the pre-
Miranda questioning, Clifton had revealed nothing in relation
to Sanders’ death during that stage of questioning.
The concerns with the two-step interrogation technique con-
demned in Seibert are simply not present under these facts.
The district court did not err in denying Clifton’s motion to
suppress on the ground that the entirety of Clifton’s statement
was involuntary under Seibert.
(b) Cutting Off Questioning
Alternatively, Clifton argues that the district court erred
in failing to determine that he asserted his right to cut off
questioning at an earlier point of the interrogation, when he
said, “I can’t,” “I can’t, I just can’t.” Clifton argues that the
court should have suppressed his statements indicating that the
other people he was with on July 20, 2014, went to Sanders’
residence to rob him, Clifton held the front door while the oth-
ers went to the back room, and Clifton did not want Sanders
to die.
The safeguards of Miranda “‘“assure that the individual’s
right to choose between speech and silence remains unfet-
tered throughout the interrogation process.”’”48 If the suspect
47
Id., 446 U.S. at 301.
48
State v. DeJong, supra note 5, 287 Neb. at 883, 845 N.W.2d at 874.
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indicates that he or she wishes to remain silent or that he or she
wants an attorney, the interrogation must cease.49 The right to
choose between speech and silence derives from the privilege
against self-incrimination.50
[9,10] Before the police are under a duty to cease the inter-
rogation, however, the suspect’s invocation of the right to
cut off questioning must be “‘unambiguous,’ ‘unequivocal,’
or ‘clear.’”51 This requirement of an unequivocal invocation
prevents the creation of a “‘third layer of prophylaxis’” which
could transform the prophylactic rules of Miranda “‘“into
wholly irrational obstacles to legitimate police investigative
activity.”’”52 To invoke the right to cut off questioning, the sus-
pect must articulate his or her desire with sufficient clarity such
that a reasonable police officer under the circumstances would
understand the statement as an invocation of the Miranda right
to remain silent.53
If the suspect’s statement is not an “‘unambiguous or
unequivocal’” assertion of the right to remain silent, then there
is nothing to “‘scrupulously honor’” and the officers have no
obligation to stop questioning.54 Officers should not have to
guess when a suspect has changed his or her mind and wishes
the questioning to end, nor are they required to clarify ambigu-
ous remarks.55 They are not required to accept as conclusive
49
State v. DeJong, supra note 5.
50
See, Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 176 L. Ed. 2d
1098 (2010); Miranda v. Arizona, supra note 2.
51
State v. Rogers, 277 Neb. 37, 58, 760 N.W.2d 35, 64 (2009). See, also,
e.g., Berghuis v. Thompkins, supra note 50.
52
State v. Rogers, supra note 51, 277 Neb. at 52, 760 N.W.2d at 51.
53
Id.
54
Id. at 52, 760 N.W.2d at 50.
55
See State v. Rogers, supra note 51. See, also, Davis v. United States, 512
U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).
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any statement or act, no matter how ambiguous, as a sign that
a suspect desires to cut off questioning.56
[11] In considering whether a suspect has clearly invoked
the right to cut off questioning, we review not only the words
of the criminal defendant, but also the context of the invo-
cation.57 A suspect need not utter a “‘talismanic phrase’” to
invoke his or her right to silence.58 Relevant facts include
the words spoken by the defendant and the interrogating offi-
cer, the officer’s response to the suspect’s words, the speech
patterns of the suspect, the content of the interrogation, the
demeanor and tone of the interrogating officer, the suspect’s
behavior during questioning, the point at which the suspect
allegedly invoked the right to remain silent, and who was
present during the interrogation.59 A court might also consider
the questions that drew the statement, as well as the officer’s
response to the statement.60
We agree with the district court that a reasonable police
officer would not have understood Clifton’s statement that “I
can’t” as an invocation of the right to remain silent. Clifton
indicated that it made sense to tell his side of the story, because
he had already admitted being in Sanders’ residence during the
shooting, “but I can’t tell you.” When Davis asked for clarifi-
cation, Clifton simply said, “I can’t, I just can’t.” But Clifton
then started answering questions about the night in question,
elaborating that “[t]hey” went to Sanders’ residence to rob him.
When asked who “they” were, Clifton explained why he could
not tell who the other parties were: “I can’t because I don’t
want anybody telling on me.”
In similar circumstances, courts have held that the state-
ment, “I can’t” is not an unambiguous invocation of the
56
Id.
57
Id.
58
Hurd v. Terhune, 619 F.3d 1080, 1089 (9th Cir. 2010).
59
State v. DeJong, supra note 5.
60
Id.
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right to remain silent.61 Rather, the suspect has thereby indi-
cated a temporary physical or emotional incapacity, or a
fear of reprisal by cohorts.62 Such motivations will not ren-
der an unambiguous expression of a desire to remain silent
ambiguous,63 but expressions of these emotions often are
something less than a clear invocation of the right not to
incriminate oneself.
Such was the case here. Clifton’s first ambiguous expres-
sion of “I can’t” must be viewed in light of his simultaneous
affirmation that it made sense to tell his side of the story. And
after again saying simply “I can’t,” upon Davis’ request for
clarification, Clifton readily answered questions relating to
the night in question, again indicating he was not invoking
his right to cut off questioning. Clifton’s last indication of “I
can’t” was specifically directed to his unwillingness to iden-
tify his cohorts. Thus, it did not indicate an unwillingness to
answer other questions relating to the shooting; i.e., to cut off
all questioning. We find no error in the district court’s denial
of Clifton’s motion to suppress the statements made after say-
ing, “I can’t.”
3. A lleged Brady Violation
Lastly, Clifton asserts that the district court should have
granted his motion for mistrial based on the alleged Brady
violation of failing to disclose Scott’s recent addition to his
story of the night in question, which Scott allegedly had
shared with State attorneys the week before trial. At issue is
Scott’s testimony that the day after the shooting, Clifton told
61
See, Taylor v. Riddle, 563 F.2d 133 (4th Cir. 1977); U.S. v. Sanchez, 866 F.
Supp. 1542 (D. Kan. 1994); Braddy v. State, 111 So. 3d 810 (Fla. 2012);
Williams v. State, 290 Ga. 418, 721 S.E.2d 883 (2012); Weaver v. State,
288 Ga. 540, 705 S.E.2d 627 (2011); Dowthitt v. State, 931 S.W.2d 244
(Tex. Crim. App. 1996). Compare, Hurd v. Terhune, supra note 58; State v.
Diaz-Bridges, 208 N.J. 544, 34 A.3d 748 (2012).
62
See, generally, id.
63
See, e.g., McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001).
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him he “did it.” Clifton argues that earlier disclosure of this
conversation would have enabled defense counsel to better
prepare to cross-examine Scott. Clifton asserts that his alleged
inculpatory statement to Scott was impeachment evidence,
because the veracity of that statement could be questioned
on the ground of its late disclosure. Clifton asserts that, as
impeachment evidence, the statement was information favor-
able to the accused as defined by Brady v. Maryland 64 and
United States v. Bagley.65
[12] In Brady v. Maryland, the U.S. Supreme Court laid
down the principle that irrespective of the good or bad faith
of the prosecution, its suppression of evidence favorable to an
accused violates due process if the evidence is material to either
guilt or punishment.66 The purpose of the Brady rule is not to
displace the adversary system as the primary means by which
truth is uncovered, but to ensure the disclosure of evidence of
such significance that, if suppressed, would deprive the defend­
ant of a fair trial.67 As refined by subsequent case law, there
are three components to a Brady violation: (1) The evidence
at issue must be favorable to the accused, either because it is
exculpatory or because it is impeaching; (2) that evidence must
have been suppressed by the State, either willfully or inadver-
tently; and (3) prejudice must have ensued such that there is a
reasonable probability that the suppressed evidence would have
produced a different verdict; i.e., the suppressed evidence must
be “‘material either to guilt or to punishment.’”68
64
Brady v. Maryland, supra note 3.
65
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481
(1985).
66
Brady v. Maryland, supra note 3. See, also, State v. Boppre, 243 Neb. 908,
503 N.W.2d 526 (1993).
67
See United States v. Bagley, supra note 65.
68
See Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 144 L. Ed.
2d 286 (1999) (quoting Brady v. Maryland, supra note 3). Accord United
States v. Bagley, supra note 65.
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As Clifton points out, the U.S. Supreme Court’s decision
in United States v. Bagley clarified that there is no distinc-
tion between impeachment evidence and exculpatory evidence.
Evidence that might be used to impeach the prosecution’s
witnesses is “‘“evidence favorable to the accused” [because]
if disclosed and used effectively, it may make the difference
between conviction and acquittal.’”69
In Bagley, the government had disclosed affidavits from key
witnesses attesting that their statements were given without
any consideration from the government, but the defendant later
discovered the witnesses in question were paid for providing
information and testifying against him. The Court found that
the misleading affidavits affected defense counsel’s ability to
impeach key witnesses. Thus, the Court remanded the cause for
a determination of whether there was a reasonable probability
that had the inducements been disclosed to the defense, the
result of the trial would have been different.
Before looking at the effect at trial of the nondisclosure,
we consider the nature of the evidence itself.70 The statement
by Clifton that he “did it” was inculpatory, not exculpatory.
Nor was Scott’s late revelation of Clifton’s inculpatory state-
ment impeachment evidence. The impeachment here at issue is
“‘impeachment by omission,’” where “‘“[a] former statement
fails to mention a material circumstance presently testified
to, which it would have been natural to mention in the prior
statement . . . .”’”71 In such circumstances, “‘“the prior state-
ment is [considered] sufficiently inconsistent” to be admitted
69
State v. Lotter, 255 Neb. 456, 487, 586 N.W.2d 591, 617 (1998), modified
on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999) (quoting
United States v. Bagley, supra note 65, and Brady v. Maryland, supra
note 3).
70
See U.S. v. Gonzales, 90 F.3d 1363 (8th Cir. 1996).
71
U.S. v. Useni, 516 F.3d 634, 651 n.13 (7th Cir. 2008). See, also, e.g.,
Steven Lubet, Understanding Impeachment, 15 Am. J. Trial Advoc. 483
(1992).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. CLIFTON
Cite as 296 Neb. 135
to impeach the present testimony.’”72 The impeachment evi-
dence is Scott’s deposition testimony and statements to police
wherein he failed to mention the conversation that Clifton
allegedly had with Scott the day after the shooting. And these
prior statements were disclosed to defense counsel.
Furthermore, we have repeatedly held that where the pros-
ecution delays disclosure of evidence, but the evidence is none-
theless disclosed during trial, Brady is not violated.73 Scott’s
testimony was disclosed at trial, and defense counsel was given
an opportunity to cross-examine Scott about whether he had
previously disclosed Clifton’s statement that he “did it.” In the
event that defense counsel believed more time was required to
adequately prepare for cross-examination, a continuance could
have been requested. It was not.
In sum, Scott’s revelation to the prosecution that Clifton told
him the day after the shooting he “did it” was not impeach-
ment evidence. Regardless, the evidence was disclosed at trial.
We conclude, therefore, that there was no Brady violation. The
district court did not abuse its discretion in denying defense
counsel’s motion for mistrial.
VI. CONCLUSION
Having found no merit to Clifton’s Batson, Miranda, or
Brady challenges, we affirm the judgment below.
A ffirmed.
72
U.S. v. Useni, supra note 71, 516 F.3d at 651 n.13.
73
See, State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016); State v. Van,
268 Neb. 814, 688 N.W.2d 600 (2004); State v. Lotter, supra note 69. See,
also, U.S. v. Gonzales, supra note 70.