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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 statement 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 constitutional 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 purposefully 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 burden of persuasion regarding racial motivation rests with, and never shifts 

from, the opponent of the strike.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/16/2017 09:13 AM CDT
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6. Juries: Discrimination: Prosecuting Attorneys. Whether a prosecutor’s reasons for using a peremptory challenge are race neutral is a question 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 suspect 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, 

Kelch, 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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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 interrogation 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 district 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 proffered nondiscriminatory reasons for the strikes.

(a) Juror No. 13

Juror No. 13 was the prosecution’s third strike. The prosecutor 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 transactions 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 qualitative 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 alcoholism 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 capacity, 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 subpoenaed “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 witnesses, whom she described as a friend of her ex-husband and 

a former coworker.
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(c) Juror No. 14

Juror No. 14 was the prosecution’s last strike. The prosecutor 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 damaging 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 challenges 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 questioning 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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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’ probation status and his mother’s passing away. When Clifton mentioned 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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continued to answer a few more questions about the night in 

question, and then admitted that “[t]hey” went to Sanders’ residence 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 statements 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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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 testified 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 testified 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, saying 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, followed by a “boom.”
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(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 marijuana. Usually Scott would “just show up,” normally accompanied 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 residence 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 hallway 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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Clifton shot Sanders. Scott saw Sanders fall forward on top of 

Clifton. Scott said he took off running. Larry and Clifton followed 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 anyone 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 conversation with Clifton. This testimony led to defense counsel’s 

making a Brady objection that will be described in more detail 

under the subheading entitled “Alleged 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 somebody. 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 prosecution 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. Alleged 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 conversation. 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 deposition 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’ imprisonment for use of a firearm to commit a felony. He appeals.

III. ASSIGNMENTS OF ERROR

Clifton assigns that the district court erred by (1) failing 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 enforcement 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 prosecutor’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 decision 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 overruling 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 challenge 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 raceneutral and whether the trial court’s final determination regarding 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 peremptory 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 prosecutor 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 inherently discriminatory.

We turn next to the district court’s finding that these raceneutral 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 explanation was pretext for discrimination.19 A trial court’s determination 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 purposeful 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 prosecutor’s questions and statements during voir dire examination 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 statements 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 sufficient 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 striking 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 ethnicity 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 percentage 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 sufficient 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 AfricanAmerican) were largely indistinguishable from the nonstruck 

jurors with respect to the proffered reasons for striking the 

African-American prospective jurors. If a prosecutor’s proffered 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 peremptory 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 comparison 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 explanations 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. 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 prosecution to strike juror No. 14 because of his apparent “unwillingness to follow the crowd” would make a “mockery” of the 

voir dire process, which is aimed at finding fair and impartial 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 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.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 evidence 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 credibility 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 suppressed 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 statement 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 determined by the district court.

(a) Warnings in Midst 

of Interrogation

In Missouri v. Seibert, the U.S. Supreme Court was confronted with a police “question-first” protocol whereby a suspect 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 trifling 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 genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same 

ground again.34

In the plurality opinion, the Court held that such tactic effectively 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 voluntary 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 provide 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 interrogation, the defendant confessed to murdering the victim and 

stealing his car.

The Court held that the effectiveness of the Miranda warning 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 defendant] Miranda warnings and then led him to repeat an earlier 

murder confession, because there was no earlier confession 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 questioning. We reasoned that during a subsequent interrogation, she 

was not explicitly attempting to clarify or explain her previously voiced inadmissible statements.42 Likewise, in State v. 

Juranek,

43 we held that the defendant’s post-Miranda statement 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 upcoming birth of Clifton’s child. “Interrogation” for purposes of 

Miranda includes “‘either express questioning or its functional 

equivalent.’”46 The functional equivalent of express questioning 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 preMiranda 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 preMiranda questioning much ground left to be covered.

Most importantly, Clifton also ignores the fact that he gave 

no incriminating statements before being given Miranda warnings. In no manner was Clifton repeating at the second stage 

what had been said before. Due to the nature of the preMiranda questioning, Clifton had revealed nothing in relation 

to Sanders’ death during that stage of questioning.

The concerns with the two-step interrogation technique condemned 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 others 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 unfettered 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 interrogation, 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 suspect 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 ambiguous 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 invocation.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 officer, 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 clarification, 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 statement, “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 indicated a temporary physical or emotional incapacity, or a 

fear of reprisal by cohorts.62 Such motivations will not render 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 expression 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 identify 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 saying, “I can’t.”

3. Alleged 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 favorable to the accused as defined by Brady v. Maryland64 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 defendant 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 inadvertently; 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 distinction 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 statement 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 statement 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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to impeach the present testimony.’”72 The impeachment evidence 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 prosecution delays disclosure of evidence, but the evidence is nonetheless 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 impeachment 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.

Affirmed.

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.