State v. Ramos

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www.nebraska.gov/apps-courts-epub/
03/02/2021 08:07 AM CST
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. RAMOS
Cite as 29 Neb. App. 511State of Nebraska, appellee, v.
Eric L. Ramos, appellant.
___ N.W.2d ___
Filed February 23, 2021. No. A-19-948.
1. Pleadings: Judgments: Appeal and Error. Issues regarding the grant
or denial of a plea in bar are questions of law; on a question of law, an
appellate court reaches a conclusion independent of the court below.
2. Motions for Mistrial: Pleadings: Prosecuting Attorneys: Intent:
Appeal and Error. While the denial of a plea in bar generally involves
a question of law, an appellate court reviews under a clearly erroneous
standard a finding concerning the presence or absence of prosecutorial
intent to provoke the defendant into moving for a mistrial.
3. Constitutional Law: Double Jeopardy. The constitutional protection
against double jeopardy does not mean that every time a defendant
is put to trial before a competent tribunal, the defendant is entitled to
go free if the trial fails to end in a final judgment. Balanced against a
defendant’s interests in having the trial completed in front of the first
tribunal is society’s right to one full and fair opportunity to prove the
defendant’s guilt.
4. Double Jeopardy: Motions for Mistrial. It is the general rule that
where a court grants a mistrial upon a defendant’s motion, the Double
Jeopardy Clause does not bar a retrial.
5. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys:
Intent. There is a narrow exception to the general rule permitting a
retrial when a mistrial is granted on the defendant’s motion, in that
where a defendant moves for and is granted a mistrial based on prosecu-
torial misconduct, double jeopardy bars retrial when the conduct giving
rise to the successful motion for a mistrial was intended to provoke the
defendant into moving for a mistrial.
6. Double Jeopardy: Motions for Mistrial: Prosecuting Attorneys:
Intent: Proof. It is the defendant’s burden to prove, in the Double
Jeopardy context, that the prosecuting attorney engaged in misconduct
intended to provoke a mistrial.
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Cite as 29 Neb. App. 5117. ____: ____: ____: ____: ____. Factors that a court may consider, in
a Double Jeopardy context, in determining whether the prosecutor
intended to provoke the defendant into moving for a mistrial include the
following: (1) whether there was a sequence of overreaching or error
prior to the errors resulting in the mistrial; (2) whether the prosecutor
resisted the motion for mistrial; (3) whether the prosecutor testified,
and the court below found, that there was no intent to cause a mistrial;
(4) the timing of the error; (5) whether the record contains any indica-
tion that the prosecutor believed the defendant would be acquitted; (6)
whether a second trial would be desirable for the government; and (7)
whether the prosecutor proffered some plausible justification for his or
her actions.
Appeal from the District Court for Johnson County: Vicky
L. Johnson, Judge. Affirmed.
Jeffrey A. Gaertig, of Smith, Schafer, Davis & Gaertig,
L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Pirtle, Chief Judge, and Riedmann and Arterburn,
Judges.
Arterburn, Judge.
INTRODUCTION
Eric L. Ramos appeals the order of the district court for
Johnson County, which denied his plea in bar following a mis-
trial. In denying the plea in bar filed after the mistrial, the dis-
trict court determined that double jeopardy did not bar retrial,
because the prosecutors did not intend to provoke Ramos into
moving for the mistrial. We affirm the denial of Ramos’ plea
in bar.
BACKGROUND
On October 19, 2017, the State filed an information charg-
ing Ramos with first degree murder, a Class I or IA felony;
use of a weapon to commit a felony, a Class II felony; assault
in the first degree, a Class II felony; use of a weapon to
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STATE v. RAMOS
Cite as 29 Neb. App. 511commit a felony, a Class II felony; and tampering or destruc-
tion of evidence, a Class IV felony. In addition, the State
alleged that Ramos was a habitual criminal. Subsequently, the
State amended the information by dismissing the charges of
assault in the first degree and the corresponding count of use
of a weapon to commit a felony.
The charges alleged in the information stem from an inci-
dent which occurred at the Tecumseh State Correctional
Institution (TSCI) on March 2, 2017. On that date, Ramos
was an inmate lodged in TSCI’s housing unit 2. Specifically,
Ramos was housed in unit 2B and was assigned to cell 2B15.
On March 2, when the inmates assigned to units 2A and 2B
returned from lunch, they discovered that correctional officers
had initiated a search of their cells, discovered a large quantity
of homemade alcohol, and confiscated that alcohol. Some of
the inmates in units 2A and 2B were observed using towels
and clothing to cover their faces and were gathering in large
groups. In addition, the inmates propped open the doors to the
outdoor area (commonly referred to as the “2A/B miniyard”)
shared by units 2A and 2B, so as to give the inmates unfettered
access to both units. The inmates ignored orders to return to
their assigned cells, and correctional officers ultimately left
the units in fear for their safety. Inmates in units 2A and 2B
destroyed property in each of the units and set multiple fires.
They also successfully covered a few of the cameras so that
correctional officers could not see everything that was occur-
ring in the units.
During this incident, Michael Galindo, an inmate who was
housed in unit 2A, was repeatedly attacked by other inmates.
Initially, he was assaulted in the 2A/B miniyard. He retreated
to the common area of unit 2A in an attempt to escape his
attackers. Four inmates followed Galindo into unit 2A and
stabbed him over 100 times while he lay on the floor. One such
inmate actually returned to Galindo after the other attackers
had dispersed. This inmate again repeatedly stabbed Galindo.
Once left alone, Galindo was able to get up and retreat to
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Cite as 29 Neb. App. 511cell 2A15, where he locked himself inside. Inmates located
Galindo inside cell 2A15. One inmate retrieved a heavy piece
of machinery from a broken icemaker. He broke the window in
the door of cell 2A15 and threw a towel which was on fire into
the cell. Galindo was later found deceased inside cell 2A15 by
correctional officers. His cause of death was smoke inhalation
that had been exacerbated by the numerous injuries incurred
from the stabbing.
Based on its analysis of video evidence, the State maintained
that Ramos participated in the initial stabbing of Galindo.
Additionally, the State intended to identify Ramos as the
inmate who returned to stab Galindo additional times and who
broke the window in cell 2A15 and started a fire inside that
cell. Ramos disputed the State’s identification of him as a par-
ticipant in the assault and murder of Galindo. Ramos refused
to waive his right to a speedy trial. As such, trial was to begin
in late July 2018.
Discovery Issues
Prior to Trial.
In January 2018, the district court ordered the State to pro-
vide “statutory discovery” to Ramos on or before February 21.
The court later amended the discovery order to add that the
State was to “make available to [Ramos] any and all evidence
requested in the motion that is in the possession of the State;
that . . . is material to [Ramos’] defense; and/or that the [S]tate
intends to introduce as evidence during the trial.” The court
indicated that the State was granted reciprocal discovery, which
was to be received at least 30 days prior to trial.
On February 21, 2018, the State filed a motion to extend
discovery. In the motion, the State indicated that it had previ-
ously provided “significant discovery” to Ramos, but that the
discovery in the case was “extremely voluminous.” The State
requested an additional 30 days to finish providing Ramos
with discovery. In conjunction with the State’s motion, it filed
a certificate of discovery compliance, indicating that it had
delivered discovery to Ramos’ counsel on February 21. The
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Cite as 29 Neb. App. 511list of discovery items delivered to defense counsel spanned
41⁄2 pages.
On March 8, 2018, a hearing was held on the State’s motion
to extend discovery. However, at the start of the hearing, the
State informed the court that it had “the remainder of the
discovery that we have prepared ready to give the defense
today.” The State subsequently filed a second certificate of
compliance, indicating that it had delivered to defense coun-
sel additional items of discovery consisting of more than 300
pages in reports, 126 pages of photographs, and over 100 audio
files from TSCI inmate and staff interviews. The State also
informed the court that its investigation was ongoing, “so there
may be additional discoverable items that come into the State’s
possession.” The State indicated it would supplement the dis-
covery as needed. Ramos objected to the State supplementing
discovery after the February 21 deadline. Defense counsel
asserted that they could not properly defend Ramos without all
of the relevant information and that the speedy trial clock was
continuing to run. The State countered, asking the district court
“to take into consideration the volume of material in this case
when thinking about [defense counsel’s] comments that we
were doing anything in bad faith.”
In responding to the parties’ arguments regarding discovery,
the district court made the following comments at the close of
the March 8, 2018, hearing:
Well, I think it’s clear that there is a monstrous amount of
information here, and it’s a practical issue that we’re all
going to have to deal with.
The murder happened in March 2017. Whether the
State was precipitous in filing charges, I don’t know, It’s
not my job to make that decision. But certainly when
you file a murder case — and I am just looking at the
district court’s file for dates. The transcript was filed
in September. Surely you had to know that you were
going to start to have to gather information. And so I am
not real happy about the fact that it took so long to get
things moving.
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STATE v. RAMOS
Cite as 29 Neb. App. 511I am glad that things are moving now, and right now
it’s just a major headache for everybody. But we have got
— the clock is ticking. We have got masses of informa-
tion to resolve, and I will do my best.
On March 22, 2018, the State filed a document titled “Claim
of Informer Privilege.” In the document, the State indicated
that it had provided some redacted discovery to Ramos, in
order to protect the names of inmate informants. The State
further explained:
[T]he State has complied with the Court’s discovery order
to the extent we believe we’re required to. In trying to be
transparent, we told the defense and the Court about this
other information. It’s now before the Court. If the Court
decides that more of the information that we have should
be provided, then we are ready and willing to do that.
Ramos objected to the State’s use of redacted discovery. The
district court expressed its frustration, telling the parties, “Okay.
Gamesmanship in this case is going to stop. It’s on both sides.”
As to the State’s actions, the court indicated, “The State has
been dilatory in furnishing information in a case that it filed in
October. The State is — well . . . I can’t begin to tell you how
much that complicates this case.” Ultimately, the court decided
to examine an unredacted copy of the pertinent discovery to
determine whether Ramos was entitled to the information. The
court later ruled that the State must supply unredacted copies
of the pertinent discovery to Ramos and his counsel within
10 days.
On April 18, 2018, the State filed its third certificate of dis-
covery compliance, indicating that it had delivered to defense
counsel an additional 13 items of discovery, including various
reports and photographs. On May 3, the State filed its fourth
certificate of discovery compliance, indicating that it had deliv-
ered to defense counsel an additional 21 items of discovery.
Apparently, these items constituted the unredacted versions of
previous discovery provided to the defense, which the court
had ordered the State to supply.
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STATE v. RAMOS
Cite as 29 Neb. App. 511Throughout the month of May, the State filed its fifth, sixth,
and seventh certificates of discovery compliance. These cer-
tificates reflected that a total of 18 additional discovery items
had been forwarded to defense counsel, including unredacted
copies of previously redacted material. In June, the State filed
its eighth certificate of discovery compliance, which indicated
that it had supplied defense counsel with four additional items
of discovery. Also in June, the State filed a motion to endorse
an additional 68 witnesses for trial.
At a hearing on June 15, 2018, Ramos asked the court to not
allow the State to endorse its additional witnesses. However,
the court granted the State’s motion. Ramos also asked that
the court enter an order finding that any discovery turned over
to the defense after the February 21 discovery deadline not be
permitted as evidence at trial. The State explained to the court
that it had
provided almost all of the material the defense has on
February 21st and March 8th, and that the information
provided since March 8th is almost entirely related to
ongoing investigation. . . .
The information that [the continuing investigation]
might discover could be helpful to the State; it could be
helpful to the defense. In any event, we will promptly
turn it over.
The court then stated:
I realize everybody is in a bad position, but at some
point . . . Ramos is going to have to make a choice. He’s
going to have to decide whether he’s going to insist on
his speedy trial rights, go to trial at the end of July with
counsel who may or may not be prepared . . . or he can do
like just about every defendant in the [S]tate of Nebraska
facing a case this complex . . . waive his speedy trial
rights and let his attorneys get ready.
In July 2018, the State filed its 9th and 10th certificates
of discovery compliance, which indicated that it had sup-
plied defense counsel with a total of 28 additional discovery
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Cite as 29 Neb. App. 511materials. Such materials included audio recordings of recent
interviews with inmates, curriculum vitaes of the State’s expert
witnesses, and photographs of TSCI.
On August 3, 2018, which was 3 days before the State was
to begin its presentation of evidence at trial, it filed its 11th
and 12th certificates of discovery compliance. The certificates
indicated that the State had forwarded to defense counsel
recent photographs taken of Ramos, audio recordings of recent
telephone calls made by Ramos, and audio recordings of recent
interviews with a former TSCI inmate and the victim’s sister.
As a result of the filings of the 11th and 12th certificates of
discovery compliance, defense counsel filed a motion to con-
tinue the trial. The court took counsel’s motion under advise-
ment, but ultimately overruled it, as the jury had already been
empaneled. The court indicated that it would allow defense
counsel time to depose witnesses associated with the recently
filed certificates of discovery compliance.
Trial.
A jury was empaneled on August 2, 2018, after almost 4
days of voir dire. The parties gave their opening statements on
August 6. In the State’s opening, it informed the jury that it
would not be presenting any forensic evidence or eyewitness
testimony which directly implicated Ramos in Galindo’s mur-
der. Rather, the State’s evidence would consist of video foot-
age taken from the prison’s camera system and from hand-held
cameras utilized by prison staff during the March 2, 2017, inci-
dent. The State indicated that using the video footage, Tatiana
De Los Santos, a corporal and a correctional intelligence offi-
cer, tracked one of the several individuals that was observed
attacking Galindo. She was eventually able to identify that
inmate as Ramos.
In their opening statement, defense counsel told the jury
that Ramos was charged with Galindo’s murder as a result of a
careless and inept investigation performed by law enforcement.
The defense pointed out that there was a great deal of missing
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STATE v. RAMOS
Cite as 29 Neb. App. 511video that would not be shown to the jury. It also iterated that
the State did not have any motive for Ramos to kill Galindo.
Ultimately, it contended that the State had misidentified Ramos
as being involved.
Prior to the testimony of any witness, the district court
granted Ramos’ motion to sequester the witnesses. The court
informed both parties, “It will be the ongoing duty of coun-
sel to advise their respective witnesses of the Court’s rule of
sequestration.”
During the first 4 days of the State’s case in chief, it pre-
sented the testimony of multiple witnesses who testified pri-
marily about the physical makeup of TSCI; about generally
what occurred in housing units 2A and 2B on March 2, 2017;
and about the prison’s video recording system. Notably, during
these first 4 days of trial, the State did not offer any evidence
to identify Ramos as the person who caused Galindo’s death.
The State’s last witness on the fourth day of trial was
Christopher Connelly, who testified that he was a major and the
current intelligence administrator for the Nebraska Department
of Correctional Services. In that position, he was responsible
for overseeing prison intelligence, including video and tele-
phone surveillance. In March 2017, at the time of the incident
which resulted in Galindo’s death, Connelly was the investiga-
tive captain at TSCI. During his testimony, Connelly detailed
the prison video recording system. Connelly then detailed his
specific involvement on March 2.
At the end of the fourth day of trial, Connelly and the
jury were watching an exhibit, which was video taken from
a hand-held camcorder operated by a correctional officer in
the prison’s tower. The video demonstrated the view from the
tower into the 2A/B miniyard during the events of March 2,
2017. Defense counsel had asked Connelly to watch the video
and note the names of any of the inmates he was able to iden-
tify. Before the video had finished playing, the district court
released the jury for the weekend. Trial was to resume the next
Monday morning.
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Cite as 29 Neb. App. 511Ramos’ Motion
for Mistrial.
Before trial resumed that Monday morning, counsel appeared
before the court regarding a report that had been authored over
the weekend by the lead investigator assigned to the case, Neal
Trantham. In the report, Trantham indicated that he had worked
with De Los Santos over the weekend and that they had recov-
ered the missing video footage alluded to in defense counsel’s
opening statement. Trantham also noted in the report that, as
a part of their efforts to find the missing video, Connelly had
briefly attempted to assist them with a software issue.
Outside of the presence of the jury, defense counsel made
three separate motions with regard to Trantham’s report. First,
the defense moved for a motion in limine to exclude from evi-
dence the newly recovered video footage. Second, the defense
moved to exclude the trial testimonies of Trantham, Connelly,
and De Los Santos, due to a violation of the court’s seques-
tration order. Finally, the defense moved for a mistrial. The
defense argued that the State had clearly instructed two of its
main witnesses, Trantham and De Los Santos, to perform fur-
ther investigation during the trial. Trantham and De Los Santos
then involved Connelly in this investigation. And, Connelly
was in the middle of his trial testimony. The defense asserted
that it was prejudiced by the actions of Trantham, Connelly,
and De Los Santos in that its theory of the case had been com-
promised and Connelly’s testimony had been tainted.
The State opposed the motion for a mistrial. It argued that
the witnesses had not violated the sequestration order because
that order only prohibited witnesses from hearing each other’s
trial testimonies. In addition, it asserted that it did nothing
wrong by asking Trantham to conduct further investigation
during the trial, because such investigation was an attempt
to rebut defense counsel’s claim that there were significant
portions missing of the prison video. The State also asserted:
“There is nothing prejudicial to [Ramos] that has occurred at
this point. There is no irreparable harm. If the Court believes
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STATE v. RAMOS
Cite as 29 Neb. App. 511that there is any type of prejudice, then that prejudice can be
cured with measures far short of granting a mistrial.”
After a recess, the district court granted the defense’s
motion for a mistrial and discharged the jury. Subsequently,
the court scheduled a second trial to begin in January 2019
and accepted the parties’ stipulation to change the venue for
the second trial.
Ramos’ Plea in Bar.
On November 2, 2018, almost 3 months after the court
declared a mistrial, Ramos filed a plea in bar. Ramos alleged
that his “motion for a mistrial was granted due to prosecuto-
rial conduct which was intended to provoke or goad [him] into
moving for a mistrial.” As such, Ramos argued that retrial of
the case was barred by the Double Jeopardy Clause.
An evidentiary hearing was held on the plea in bar on April
23, 2019. At the hearing, Ramos offered into evidence the
record from the first trial. In addition, he called three witnesses
to testify: Trantham, Connelly, and De Los Santos.
Trantham testified that he was the lead investigator assigned
to the case involving Galindo’s murder at TSCI. He recalled
that sometime during the first week of the first trial, the pros-
ecutors requested that he meet with De Los Santos again to try
and recover the missing video alluded to during defense coun-
sel’s opening statement. Trantham explained that he was aware
of what defense counsel said during his opening statement due
to the news media coverage of the trial.
Ultimately, Trantham set up a meeting time between him
and De Los Santos during the Friday of the first week of trial.
During this meeting, Connelly came to assist them with the
prison video software because he was more familiar with the
system. Trantham indicated that the prosecutors did not specifi-
cally request him to meet with Connelly, but, rather, Connelly
provided assistance only at the request of Trantham.
Trantham testified that when the prosecutors asked him to
meet with De Los Santos regarding the missing video, they
explicitly reminded him of the sequestration order and told
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Cite as 29 Neb. App. 511him not to talk about any trial testimony. Trantham admitted
that during his meeting with De Los Santos and Connelly,
they collectively discussed how defense counsel’s opening
statement was misleading because there was actually only 10
minutes of missing video. Trantham also admitted that during
the meeting, Connelly expressed frustration with defense coun-
sel’s attempting to attack his character during his testimony.
Trantham advised Connelly that they should not be discussing
his testimony.
Upon questioning by the State, Trantham testified that the
prosecutors never mentioned to him that they had concerns that
the case would end in Ramos’ being acquitted. In addition, they
never advised Trantham of any “grave concerns” regarding the
trial process.
Connelly testified that on the Friday of the first week of
trial, he was at his office when he was asked by Trantham
and De Los Santos to assist with installing the prison video
software onto a computer. Connelly indicated that he installed
the software, gave Trantham and De Los Santos his user name
and password, and left the room. De Los Santos did not ask
for his assistance in actually searching for the missing video.
Connelly testified that he was aware of the sequestration order,
but he did not believe that he was creating any issue when he
was helping Trantham and De Los Santos. Connelly explained
that when he left the courtroom without having finished his tes-
timony, the prosecutors told him to “know no more on Monday
when I came back than I did that night, not look at video, noth-
ing.” (We note that no trial proceedings were held on Friday.)
Connelly believed that he abided by that restriction.
Connelly did admit that he mentioned to Trantham his frus-
tration with defense counsel’s attempting to bring up some-
thing from his past. However, Connelly explained that he did
not think this was a problem because that fact was not relevant
to the case.
De Los Santos testified that she had been trying, on her
own, to find the missing portions of the prison video for “some
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Cite as 29 Neb. App. 511time.” In the week or two prior to trial, her search became
more urgent because she wanted the prosecutors to have all
of the evidence. On the Friday following the first week of
trial, she located the missing video on her hard drive, while
Trantham was present.
De Los Santos indicated that she had been informed of
the sequestration order by the prosecutors. Specifically, she
had been told not to talk about the case with other witnesses.
She denied having any contact with the prosecutors after the
trial began.
After the evidentiary hearing, the district court entered an
order overruling Ramos’ plea in bar. In the order, the court
made factual findings on each of the factors set forth in State v.
Muhannad, 286 Neb. 567, 837 N.W.2d 792 (2013) (Muhannad
I), paying particular attention to whether the State had engaged
in a pattern of overreaching or error prior to the error which
resulted in the mistrial. The district court ultimately concluded
that Ramos had failed to sufficiently demonstrate that the State
goaded or provoked him into moving for a mistrial. Ramos
timely appealed.
ASSIGNMENT OF ERROR
Ramos asserts the district court erred in overruling his plea
in bar.
STANDARD OF REVIEW
[1] Issues regarding the grant or denial of a plea in bar are
questions of law. State v. Arizola, 295 Neb. 477, 890 N.W.2d
770 (2017), disapproved on other grounds, State v. Melton, 308
Neb. 159, 953 N.W.2d 246 (2021); State v. Williams, 24 Neb.
App. 920, 901 N.W.2d 334 (2017). On a question of law, an
appellate court reaches a conclusion independent of the court
below. Id.[2] While the denial of a plea in bar generally involves a
question of law, we review under a clearly erroneous standard
a finding concerning the presence or absence of prosecutorial
intent to provoke the defendant into moving for a mistrial.
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Cite as 29 Neb. App. 511State v. Muhannad, 290 Neb. 59, 858 N.W.2d 598 (2015)
(Muhannad II).
ANALYSIS
The parties do not dispute the propriety of the mistrial. The
issue presented in this appeal is whether concepts of double
jeopardy bar a retrial and, thus, whether the district court
should have granted Ramos’ plea in bar.
Traditionally, the Double Jeopardy Clause has been viewed
as safeguarding three interests of defendants: (1) the interest in
being free from successive prosecutions, (2) the interest in the
finality of judgments, and (3) the interest in having the trial
completed in front of the first tribunal. Muhannad I, supra.
This appeal involves the defendant’s interest in having the trial
completed in front of the first tribunal.
[3] The constitutional protection against double jeopardy
does not mean that every time a defendant is put to trial
before a competent tribunal, the defendant is entitled to go
free if the trial fails to end in a final judgment. Id. Balanced
against a defendant’s interests in having the trial completed in
front of the first tribunal is society’s right to one full and fair
opportunity to prove the defendant’s guilt. Id. When society
is deprived of its right to attempt to prove a defendant’s guilt
in a single prosecution because of a trial error, the interests of
society in vindicating its laws generally outweigh the double
jeopardy interests of the defendant. Id.
[4] It is the general rule that where a court grants a mistrial
upon a defendant’s motion, the Double Jeopardy Clause does
not bar a retrial. Muhannad I, supra. A defendant’s motion for
a mistrial constitutes a deliberate election on his or her part to
forgo the right to the trial completed before the first trier of
fact. Id. This is true even if the defendant’s motion is neces-
sitated by prosecutorial or judicial error. Id. When the mistrial
is declared at the defendant’s behest, the defendant’s right to
have his or her trial completed by a particular tribunal is, as a
general matter, subordinated to the public’s interest in fair trials
designed to end in just judgments. Id.
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Cite as 29 Neb. App. 511[5,6] There is a “‘narrow exception’” to this general rule.
Muhannad II, 290 Neb. at 65, 858 N.W.2d at 604. In Oregon
v. Kennedy, 456 U.S. 667, 679, 102 S. Ct. 2083, 72 L. Ed. 2d
416 (1982), the U.S. Supreme Court held that where a defend­
ant moves for and is granted a mistrial based on prosecutorial
misconduct, double jeopardy bars retrial when the “conduct
giving rise to the successful motion for a mistrial was intended
to provoke the defendant into moving for a mistrial.” The
Court in Oregon v. Kennedy, supra, rejected a “more general-
ized standard of bad faith conduct, harassment, or overreaching
as an exception to the defendant’s waiver of his or her right to
a determination by the first tribunal.” Muhannad I, 286 Neb.
at 577, 837 N.W.2d at 800. Consequently, “[p]rosecutorial
conduct that might be viewed as harassment or overreach-
ing, even if sufficient to justify a mistrial on [the] defendant’s
motion, . . . does not bar retrial absent intent on the part of the
prosecutor to subvert the protections afforded by the Double
Jeopardy Clause.” Oregon v. Kennedy, 456 U.S. at 675-76.
The Nebraska Supreme Court has further explained the lim-
ited nature of the exception espoused in Oregon v. Kennedy,
supra: “[I]n the absence of an intent to goad the defendant
into moving for mistrial, double jeopardy would not bar retrial
where the prosecutor ‘simply made “an error in judgment”’
or was grossly negligent.” Muhannad II, 290 Neb. at 66, 858
N.W.2d at 604. It is the defendant’s burden to prove this intent.
Muhannad II, supra.
[7] In Muhannad I, supra, the Nebraska Supreme Court set
forth a list of objective factors derived from and articulated
by state and federal courts for consideration when determin-
ing whether prosecutors intended to provoke the defendant
into moving for a mistrial. While not constituting a closed list,
these factors include the following: (1) whether there was a
sequence of overreaching or error prior to the errors resulting
in the mistrial; (2) whether the prosecutor resisted the motion
for mistrial; (3) whether the prosecutor testified, and the court
below found, that there was no intent to cause a mistrial;
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Cite as 29 Neb. App. 511(4) the timing of the error; (5) whether the record contains any
indication that the prosecutor believed the defendant would be
acquitted; (6) whether a second trial would be desirable for the
government; and (7) whether the prosecutor proffered some
plausible justification for his or her actions. See Muhannad
I, supra. See, also, State v. Williams, 24 Neb. App. 920, 901
N.W.2d 334 (2017).
The district court considered each of the factors delineated
in Muhannad I, supra, in determining to overrule Ramos’ plea
in bar. Similarly, we consider each of the factors in turn.
Sequence of Overreaching
or Error.
The crux of Ramos’ assertion that the State intended to pro-
voke him into moving for a mistrial is based upon his belief
that the State engaged in a pattern of misconduct “up to, and
during, the trial.” Brief for appellant at 11. In Ramos’ brief
on appeal, he points to the State’s “numerous discovery viola-
tions” as evidence that the proceedings below were “replete
with instances of the State[’s] provoking Ramos to move for a
mistrial.” Id. Ramos states:
The State committed blatant and repeated discovery vio-
lations and obstruction of justice in contravention of
Ramos’ Sixth Amendment constitutional rights through-
out these proceedings. The State’s violation of the seques-
tration order in the middle of the trial was not an isolated
incident; rather, it was the proverbial straw that broke the
camel’s back when reflecting upon the pattern or sequence
of prior discovery violations by the prosecution . . . .
Brief for appellant at 10.
In the district court’s order overruling Ramos’ plea in bar,
the court rejected Ramos’ argument that the State engaged in
a pattern of misconduct or error. Therein, the court explained:
The Court also finds that the State was unprepared to
release the massive amount of discovery material it had
in a timely manner. The Court has never believed that
the State did so maliciously; it simply was not ready
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Cite as 29 Neb. App. 511to proceed when the charges were filed. The State filed
approximately ten Notices of Compliance, which contin-
ued until the time of trial. The Court finds that this failure
was not done in an attempt to goad the defense into mov-
ing for a mistrial; it was poor planning at the front end,
complicated by a massive flood of data on the tail end.
Upon our review, we do not find that the court committed
clear error in determining that the State’s actions in continually
supplementing their discovery up to the time of trial were done
with any intent to provoke a mistrial.
In Ramos’ brief on appeal, he carefully recounts the numer-
ous certificates of discovery compliance filed by the State
from February to August 2018. He also details his multiple
objections to the State’s actions. However, Ramos does not
point to any evidence which would suggest that the State
was acting with an intent to provoke a mistrial during the
discovery process. Rather, our reading of the record reveals,
consistent with the district court’s comments, that the State
was not acting maliciously. While the State did appear some-
what unprepared to turn over all of its discovery in February,
it did provide the defense with a large volume of informa-
tion on February 21 and again on March 8. Moreover, as the
State repeatedly explained, the investigation into the incident
at TSCI on March 2, 2017, was ongoing, even as the parties
prepared for trial. Because of this ongoing investigation, the
State was receiving new information from law enforcement
on a regular basis. It provided the defense with this informa-
tion as soon as it became available. We further note that in
comparison to the large volume of discovery forwarded to the
defense on February 21, 2018, and on March 8, the discovery
provided in April, May, June, July, and August consisted of
much smaller packages of information.
Based on the totality of the foregoing factors, we find no
evidence to support Ramos’ generalized assertion that the
State’s failure to comply with the court’s discovery deadline
was done with any intent to provoke a mistrial. As such,
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Cite as 29 Neb. App. 511we find that this factor weighs against granting Ramos’ plea
in bar.
Prosecutors’ Resistance to
Motion for Mistrial.
As the district court noted in its order, Ramos concedes that
the State actively resisted the motion for mistrial. The record
reflects that the State appeared to be surprised by the motion
for mistrial. The State zealously argued that Ramos had not
been prejudiced by the State’s actions and that any issues
created by Trantham’s recent report could be appropriately
handled by something much less harsh than the court’s grant-
ing a mistrial. We conclude that this factor does not support a
finding that the State intended to provoke Ramos into request-
ing a mistrial.
Prosecutors’ Intent to
Cause Mistrial.
In its order, the district court noted that the prosecutors did
not testify at the evidentiary hearing, nor were they called to
testify by Ramos. The district court then found that there was
no evidence presented at the hearing which would demonstrate
that the prosecutors intended to cause a mistrial by instructing
Trantham to look for the missing video footage. On appeal,
Ramos argues that we should “negatively construe[]” the pros-
ecutors’ failure to testify regarding their intent. Brief for appel-
lant at 17. Ramos explains, “The State’s decision, whether
strategical or for some other reason, to not offer any prosecutor
testimony on this point should be negatively construed against
the State and supports Ramos’ position that Double Jeopardy
has attached and bars a retrial.” Id.We decline to impute to the State an intent to cause a mis-
trial without any evidence of such intent. While it is true that
the prosecutors did not testify at the evidentiary hearing, it is
also true that Ramos had the burden to prove that the State
provoked him to request a mistrial. See Muhannad I, supra.
The State was under no burden to disprove the allegations
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Cite as 29 Neb. App. 511within Ramos’ plea in bar. We agree with the district court that
there was no evidence presented to demonstrate that the pros-
ecutors intended to cause a mistrial by instructing Trantham to
look for the missing video footage. Accordingly, we conclude
that this factor also does not support a finding that the State
intended to provoke Ramos into requesting a mistrial.
Timing of Error.
In Ramos’ brief on appeal, he argues that the timing of the
State’s misconduct is indicative of its intent to provoke a mis-
trial. Specifically, he explains:
[The violation of the sequestration order] took place
four days after the beginning of an expected two-to-three
week trial, with the State still in the early stages of its
case-in-chief. It is not like the State was close to the fin-
ish line or about to safely land the plane. The State had
not yet put on any evidence establishing Ramos’ guilt.
Rather, it is plausible to infer that the State sought to hit
the reset button and reshuffle the deck in order to be dealt
a better and stronger hand.
Brief for appellant at 20. In the State’s brief, it argues that the
timing of the mistrial actually bolsters its argument that it did
not intend to provoke a mistrial. The State points out that at
the time of the mistrial, it had not presented any of its core
evidence of Ramos’ guilt. In particular, it had not presented
any video recordings of the attacks on Galindo. The State then
states, “It is illogical that the State would intend to cause a
mistrial before presentation of its best evidence.” Brief for
appellee at 36.
In the district court’s order overruling Ramos’ plea in bar,
the court found that the timing of the error weighed “slightly in
favor” of Ramos’ position. The court noted that “[t]he mistrial
was granted primarily because it appeared that the witnesses
had violated the sequestration order, because the late discovery
of the ‘missing video’ came as a surprise to the defense, as well
as the culmination of the series of errors [during the discov-
ery process].” However, the court did not further explain how
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Cite as 29 Neb. App. 511the timing of the mistrial in any way demonstrated the State’s
intent to provoke Ramos’ motion.
Upon our review, we find that the timing of the mistrial is
ambiguous as to the State’s intent to provoke a mistrial. Ramos
asserts the timing was beneficial to the State because it was
still in the beginning stages of its case in chief and a “reset”
would not have resulted in much wasted time, but would have
resulted in stronger evidence during a second trial. Brief for
appellant at 20. However, the State argues the same timing
weighs against the desirability of a mistrial. It questions why
the State would have believed a mistrial was necessary when it
had not yet begun to present the core of its case against Ramos.
Given the ambiguity in this factor, we find that this factor does
not weigh either in favor of or against granting Ramos’ plea in
bar. Therefore, to that extent, we find clear error in the district
court’s resolution of this factor.
Prosecutors’ Belief Regarding
Possible Acquittal.
Again, we note that the prosecutors did not testify at the evi-
dentiary hearing. As such, there is little evidence to demonstrate
their belief about the possibility of an acquittal. Trantham did
testify that as the lead investigator on the case, he had a great
deal of contact with the prosecutors even after the trial started.
He testified that the prosecutors never gave him the impression
that they thought the trial would end with Ramos’ being acquit-
ted. In addition, the prosecutors did not discuss with Trantham
any concerns about how the trial was going. We also note that
at the time of the mistrial, the State had only just begun pre-
senting its case to the jury. And, as we discussed above, most
of the evidentiary rulings had gone in the State’s favor. The
State was not prohibited from introducing any of the evidence
which was produced to Ramos after the original February 21,
2018, discovery deadline.
In the district court’s order overruling Ramos’ plea in bar,
the court found, “What little evidence is in the record weighs
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Cite as 29 Neb. App. 511on the side of the prosecution being confident of a guilty ver-
dict.” We cannot say the court clearly erred in this finding.
Desirability of Second
Trial for State.
The district court found that what “little evidence” was pre-
sented regarding whether a second trial would benefit the State
was in regard to the admissibility of the recovered video. The
district court noted that during a subsequent trial, the defense
would no longer be able to point to the missing video in sup-
port of its theory that law enforcement conducted a “shoddy
investigation.” Similar to the district court’s statement, we do
not find much, if any, evidence in the record regarding the
desirability of a second trial for the State. The State’s recov-
ery of the missing video clearly negated a portion of Ramos’
defense. However, prior to the mistrial’s being granted, the
State appeared to believe that the recovered video would be
admitted into evidence as part of its rebuttal case. Given this
belief by the State, a second trial would not be necessary to
negate Ramos’ defense. We conclude that this factor does not
weigh in favor of granting the plea in bar.
Plausible Justification for
State’s Actions.
The district court found that the State offered a plausible
explanation for instructing Trantham to look with De Los
Santos for the missing video footage. Specifically, the State
indicated that it wanted to find the missing video to rebut
the defense’s theory that the rest of the video evidence was
somehow unreliable because portions of that evidence had
gone missing. We do not find clear error in the district court’s
finding. As such, this factor does not support a finding that the
State intended to provoke Ramos into requesting a mistrial.
Resolution of Muhannad I Factors.
Upon our review, the record supports the district court’s
conclusion as to all but one of the factors delineated in
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Cite as 29 Neb. App. 511Muhannad I, supra, and we find that factor to be neutral rather
than slightly favoring Ramos’ plea in bar. The record before
us does not demonstrate a sequence of overreaching or error
prior to the error resulting in the mistrial. There is no evidence
that the prosecutors had an intention of causing a mistrial or
that they believed the evidence was insufficient to sustain a
conviction. And, the timing of the error resulting in the mis-
trial does not weigh for or against Ramos’ position. Based on
the totality of the evidence presented, we cannot find that the
prosecutors intended to goad Ramos into moving for a mistrial.
There is simply a lack of evidence in the record to demonstrate
that the State intentionally committed prosecutorial miscon-
duct or intended that such conduct would provoke a mistrial.
Therefore, we find that the district court’s determination was
not clearly erroneous and that Ramos’ plea in bar was prop-
erly denied.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court overruling Ramos’ plea in bar.
Affirmed.