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STATE v. HERNANDEZ

Cite as 299 Neb. 896

State of Nebraska, appellee, v.

Desiderio C. Hernandez, appel

___ N.W.2d ___

Filed May 11, 2018. No. S-17-235.

1. Constitutional Law: Self-Incrimination: Appeal and Error. Whether 

a defendant voluntarily made a statement while in custody and whether 

a defendant unambiguously invoked his or her right to remain silent or 

to have counsel present are mixed questions of law and fact. An appellate court reviews a trial court’s finding of historical facts for clear error 

and independently determines whether those facts satisfy the constitutional standards.

2. Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of 

that discretion.

3. Motions for Mistrial: Appeal and Error. Whether to grant a motion 

for mistrial is within the trial court’s discretion, and an appellate court 

will not disturb its ruling unless the court abused its discretion.

4. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial 

is properly granted in a criminal case where an event occurs during the 

course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus 

prevents a fair trial.

5. Constitutional Law: Witnesses: Self-Incrimination. The 5th 

Amendment to the U.S. Constitution—applicable to state governments 

by incorporation through the 14th Amendment—protects against compelled self-incrimination by providing that no person shall be compelled 

in any criminal case to be a witness against himself or herself.

6. Motions to Suppress: Self-Incrimination: Proof. To overcome a 

motion to suppress, the prosecution has the burden to prove by a preponderance of the evidence that incriminating statements by the accused 

were voluntarily given and not the product of coercion.

Nebraska Supreme Court Online Library

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

05/25/2018 09:06 AM CDT
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7. Confessions: Police Officers and Sheriffs. In determining whether an 

accused’s statement was given freely and voluntarily, courts examine 

police conduct in light of the totality of the circumstances.

8. ____: ____. Coercive police activity is a necessary predicate to a finding 

that a confession is not voluntary.

9. Miranda Rights: Waiver: Words and Phrases. To be a valid waiver 

of Miranda rights, the waiver must be knowing and voluntary. A waiver 

is knowing if it is made with a full awareness of both the nature of the 

right being abandoned and the consequences of the decision to abandon 

it. A waiver is voluntary if it is the product of a free and deliberate 

choice rather than through intimidation, coercion, or deception.

10. Miranda Rights: Waiver. An express waiver of a suspect’s Miranda

rights is not required to be made in writing; an oral waiver is sufficient.

11. ____: ____. Where the prosecution shows that a Miranda warning was 

given and that it was understood by the accused, an accused’s uncoerced 

statement establishes an implied waiver of the right to remain silent.

12. ____: ____. Statements prefaced by equivocal words like “I think,” 

“maybe,” or “I believe” generally do not constitute a clear, unambiguous, and unequivocal invocation.

13. Evidence: Words and Phrases. To be relevant, evidence must be probative and material. Evidence is probative if it has any tendency to make 

the existence of a fact more or less probable than it would be without the 

evidence. A fact is material if it is of consequence to the determination 

of the case.

14. Rules of Evidence: Words and Phrases. In the context of Neb. Evid. 

R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016), unfair prejudice means 

an undue tendency to suggest a decision based on an improper basis.

15. Convictions: Other Acts: Appeal and Error. When considering 

whether evidence of other acts is unfairly prejudicial, an appellate court 

considers whether the evidence tends to make conviction of the defendant more probable for an incorrect reason.

16. Trial: Prosecuting Attorneys: Words and Phrases. Generally, prosecutorial misconduct encompasses conduct that violates legal or ethical 

standards for various contexts because the conduct will or may undermine a defendant’s right to a fair trial.

17. Trial: Prosecuting Attorneys: Due Process. Prosecutorial misconduct 

prejudices a defendant’s right to a fair trial when the misconduct so 

infects the trial that the resulting conviction violates due process.

18. Trial: Prosecuting Attorneys. Prosecutors generally may not give their 

personal opinions on the veracity of a witness or the guilt or innocence 

of the accused. The principle behind this rule is that the prosecutor’s 

opinion carries with it the imprimatur of the government and may 
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induce the jury to trust the government’s judgement rather than its own 

view of the evidence.

19. ____: ____. When a prosecutor’s comments rest on reasonably drawn 

inferences from the evidence, the prosecutor is permitted to present a 

spirited summation that a defense theory is illogical or unsupported by 

the evidence and to highlight the relative believability of witnesses for 

the State and the defense.

20. Juries: Prosecuting Attorneys. Prosecutors should not make statements 

or elicit testimony intended to focus the jury’s attention on the qualities 

and personal attributes of the victim.

21. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is 

prejudicial depends largely upon the context of the trial as a whole.

22. Trial: Prosecuting Attorneys: Appeal and Error. In determining 

whether a prosecutor’s improper conduct prejudiced the defendant’s 

right to a fair trial, an appellate court considers the following factors: 

(1) the degree to which the prosecutor’s conduct or remarks tended to 

mislead or unduly influence the jury, (2) whether the conduct or remarks 

were extensive or isolated, (3) whether defense counsel invited the 

remarks, (4) whether the court provided a curative instruction, and (5) 

whether the strength of the evidence supporting the conviction.

Appeal from the District Court for Richardson County: 

Daniel E. Bryan, Jr., Judge, Retired. Affi

Robert W. Kortus, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

Heavican, C.J., Cassel, Stacy, and Funke, JJ., and

and Samson, District Judge

Samson, District Judg

I. INTRODUCTION

A confession may not be used in a criminal prosecution 

if it was obtained through police coercion rather than voluntarily made. The appellant, who was convicted of first degree 

murder, argues that his confession was not voluntary, because 

he was still under the influence of the methamphetamine he 
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smoked the day before. Because we find no police coercion, 

we conclude it was voluntary.

The appellant also claims that prior to his confession, he 

did not voluntarily waive his right to remain silent, but instead 

invoked that right during his interview with law enforcement. 

After a review of the evidence, we conclude that the appellant understood his rights, yet still agreed to speak with law 

enforcement. We also find that the appellant’s statement that 

he would “probably stop talking” was not an unequivocal invocation of the right to remain silent. We also conclude that the 

district court did not abuse its discretion by not redacting some 

of the statements in the interview.

Finally, we conclude that the prosecuting attorney made 

several inappropriate comments during his closing arguments. 

However, the district court did not abuse its discretion by not 

declaring a mistrial, in part because of the strength of the evidence supporting the convictions.

II. BACKGROUND

Desiderio “Desi” C. Hernandez was charged with first 

degree murder (a Class I or IA felony),1 use of a firearm to 

commit a felony (a Class IC felony),2 and possession of a firearm by a prohibited person (a Class ID felony).3

 All of these 

charges were made in connection with the death of his cousin, 

Joseph “Joey” A. Debella, Jr. A 5-day jury trial was held. The 

following evidence was adduced.

1. The Brownell H

Debella moved to Falls City, Nebraska, in the summer 

of 2015. Shortly thereafter, Debella began staying at Jason 

Brownell’s house (the Brownell house). Several other individuals also stayed there or visited frequently, including John 

Hall, Brett Winters, David McPherson, Jeff Morley, and 

1 See Neb. Rev. Stat. § 28-303 (Supp. 2017).

2 See Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016).

3 See Neb. Rev. Stat. § 28-1206(3)(b) (Reissue 2016).
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Hernandez. Debella lived in the basement. All other residents, 

including Hernandez, slept upstairs.

Evidence suggested that methamphetamine was sold in the 

house on a daily basis and that everyone in the house was 

involved in drug sales, including Hernandez and Debella. One 

house resident testified that Debella was the primary dealer of 

methamphetamine.

2. August 4, 201

Hall and McPherson testified to the events leading up to 

the discovery that Debella had been shot. On the evening of 

August 4, 2015, Hall and McPherson were smoking methamphetamine in Hall’s bedroom in the Brownell house when they 

heard what sounded like a gunshot. According to McPherson, 

he said to Hall, “‘was that a gunshot I just heard?’” to which 

Hall replied, “‘Yeah. They’re probably shooting that gun in the 

basement, again.’”

A few minutes later, Hernandez opened the door to Hall’s 

bedroom and asked if they wanted to go to the basement to 

smoke. Hall accepted the invitation, but shortly afterward, 

Hernandez left out the front door.

After Hernandez left, Hall yelled downstairs to Debella. 

Debella did not answer. Hall then heard “fast” breathing and 

went downstairs to discover Debella lying on the floor and 

shaking, with blood coming out of his head and blood on the 

floor. Hall yelled to McPherson that Debella had been shot and 

told McPherson to call the 911 emergency dispatch service. 

McPherson testified that he did not call 911, because it was 

not his house and he did not want to get involved. Instead, 

McPherson went to Brownell’s workplace to tell Brownell 

about Debella.

McPherson and Hall testified that they did not hear anyone 

entering or leaving the house from the time they arrived to the 

time Hernandez left. Winters arrived at the house around the 

time that McPherson was leaving.

Hernandez’ sister, Esperanza Ogden, also testified as to her 

recollections of that night. She testified that Hernandez came 
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to her house at approximately 11:40 p.m. Hernandez gave 

Ogden a cigarette and said, “‘That will probably be the last 

cigarette I ever give you.’” Hernandez then told Ogden he had 

shot Debella and indicated he had shot him in the forehead. 

Hernandez then walked away.

Ogden then called her and Hernandez’ brother and sister-inlaw, who also lived in Falls City, to tell them what Hernandez 

had said. Minutes later, Hernandez arrived at their house. 

When he arrived, the brother and sister-in-law were on the 

front porch. From the sidewalk, Hernandez said, “‘I shot 

that motherfucker.’” The brother asked why, and Hernandez 

replied, “‘His bitch shouldn’t have been late.’” Hernandez also 

said, “‘I told you guys I wasn’t fucking around.’” According to 

the sister-in-law, as Hernandez was walking away, he sarcastically said, “‘Somebody should probably call 911. It’s been at 

least ten minutes now.’” The sister-in-law testified that during the time Hernandez was at their house (about a minute), 

Hernandez was “hopping around” and could not keep still 

from adrenaline.

After Hernandez left, the sister-in-law called Ogden back 

and said she was coming to get her so they could go to the 

Brownell house together.

When Ogden and the sister-in law arrived at the Brownell 

house, the front door was locked. As they were knocking, 

McPherson arrived and yelled to Hall to open the door. Soon 

after, Hall and Winters opened the door, and McPherson left.

Ogden and the sister-in-law entered the house, and they 

could hear Debella’s labored breathing and moaning. Ogden 

described Debella’s breathing as a “death hurl” or “death 

gurgle.” Ogden then went into the basement and found Debella 

lying face down, with blood around his head. She told the 

sister-in-law to call 911.

3. August 5, 201

Police responded shortly after the call. At approximately 

12:15 a.m. on August 5, 2015, a Falls City Police Department 

officer, Jonathan Kirkendall, and another officer arrived at the 
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scene. Hall told the officers that Debella was downstairs. When 

Kirkendall arrived at Debella’s side, Debella was still breathing 

laboriously, but when Kirkendall attempted to communicate 

with him, Debella did not respond.

Kirkendall testified that he did not see any signs of struggle 

in the basement. The officers found some .22-caliber ammunition in the basement and a revolver handgun under some blankets on a futon bed.

Debella was taken by ambulance to a local hospital and then 

transported by helicopter to a hospital in Lincoln, Nebraska, 

where he was stabilized and placed in an intensive care unit. 

He was kept alive with a life support system. About a week 

later, Debella’s mother decided to remove him from life support, after which he died.

At around 10 a.m. on August 5, 2015, Hernandez went to 

Michael Seager’s house in Falls City. Seager was an acquaintance of Hernandez, whom Hernandez had gotten into an 

altercation with and had not been in contact with for 6 to 

8 months.

Hernandez told Seager he had nowhere to go and asked if 

Seager wanted to “hang out” and smoke methamphetamine. 

Seager agreed, and the two spent the day together smoking 

multiple times. At some time during the day, Hernandez asked 

Seager if he could stay in his house and pay rent. Seager 

turned him down.

Hernandez then called his cousin, Tiffany Gates, who lived 

in Horton, Kansas, which is approximately 35 minutes outside 

of Falls City. Hernandez told Gates that he needed a place 

to stay. At the time Hernandez called, Gates already knew 

Hernandez was wanted in connection with the shooting of 

Debella and told Hernandez that he could come stay with her. 

Gates then got her children out of the house and arranged for 

someone to call the police when she sent a text message indicating that Hernandez had arrived.

Seager drove Hernandez to Gates’ house. When they arrived, 

Gates sent the text message. Gates testified that she asked 

Hernandez what happened and that he chuckled and said, “‘I 
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got that motherfucker right there.’” Seager testified that he 

overheard Hernandez say to Gates, “‘He was breathing when I 

got there. He wasn’t when I left,’” and he saw Hernandez make 

a gesture like a gun pointed at his forehead. However, Gates 

testified that Hernandez told her Debella was still breathing 

when he left.

At about 7 p.m. on August 5, 2015, Horton police approached 

the Gates’ residence. Hernandez immediately said to Gates, 

“‘I’m not here’” and ran into the house. Gates told one of the 

officers that Hernandez was inside.

Hernandez was ordered to come out of the house, but he 

stayed inside. The officers did not enter the house.

4. August 6, 201

After an 8-hour standoff, which included a “SWAT team,” 

Hernandez was taken into custody at approximately 3 a.m. on 

August 6, 2015. A Taser was deployed on Hernandez during 

his arrest.

After being briefly treated at a local hospital for a small 

laceration on his head and for a Taser prong stuck in his chest, 

Hernandez was medically cleared, turned over to the police, 

and transported to jail at around 3:30 a.m. on August 6, 2015.

5. Interview With Investig

At around 2:30 p.m. on August 6, 2015, Hernandez was 

interviewed by two Nebraska State Patrol investigators, Cory 

Townsend and Nicholas Frederick, in an interview room at the 

Brown County sheriff’s office in Hiawatha, Kansas.

At the beginning of the video-recorded interview, Townsend 

introduced himself and Frederick and told Hernandez that 

they were from the Nebraska State Patrol. Hernandez asked 

Townsend, “Why am I in Kansas, and you guys are questioning 

me in another state?” Townsend explained that they can question people in other states, but do not have authority to make 

arrests there.

Townsend told Hernandez that they had an idea about 

what happened between him and “Joey.” Hernandez said, 
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“Joey who?” Townsend said, “Joey [Debella,] your cousin.” 

Hernandez said, “What about my cousin?” Townsend said, 

“Tell me your name, please.” Hernandez said, “My name is 

Desi. You just got my name from in there, didn’t you?”

Hernandez then launched into a long discussion of his family and various topics. After a while, Townsend told Hernandez 

again that he wanted to talk to him about Debella and that he 

needed Hernandez’ cooperation to get his side of the story. 

Hernandez said, “There’s nothing I can tell you guys that can 

help me any more than if I tell you the truth.”

Townsend told Hernandez that he needed to make sure 

Hernandez knew what his rights were. Hernandez responded, 

“I don’t even know what my rights are.” As Townsend tried to 

proceed with reading Hernandez his rights, Hernandez interjected and started talking about various off-topic subjects.

Townsend tried to bring Hernandez back on topic and read 

from a Miranda rights advisory form. He read, “Before asking you any questions about the shooting of Joseph Anthony 

Debella Jr., I must advise you and you must understand each of 

the following,” and he read the Miranda rights. He then said, 

“Now [Hernandez], did you understand those?” Hernandez 

said, “Yeah, I’m still focusing on the shooting.” Townsend 

said, “Do you want me to explain or to repeat any of that?” 

Hernandez shook his head “no.”

Townsend then read the bottom of the form, which stated 

that Hernandez had been advised of his rights and was willing to answer questions. He told Hernandez that there are 

two sides to every story and that Townsend wanted to get 

Hernandez’ side of the story. Pointing to the line on the rights 

advisory form that read “the shooting of Joseph Anthony 

Debella, Jr.,” Hernandez said, “That right there is . . . somebody’s mistake somewhere.” He said he heard that “something 

happened at that house,” but that no one told him what happened. He then asked Townsend to tell him.

Hernandez started talking about his family and other topics. 

Townsend tried to bring Hernandez’ attention back to the advisory form. The following colloquy occurred:
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Townsend: Because of my job as a police officer, I live 

by a lot of rules. And I have expectations. And I live by 

upholding the rights of individuals. Ok?

Hernandez: And because of my job as a civilian I live 

by a lot of rules. I respect them a lot more than I probably should.

Townsend: And that’s what makes socie . . . .

Hernandez: I get disrespected more than I probably 

should. But that’s nor [sic] here nor there.

Townsend: To talk to you about this, [Hernandez], I’d 

like for you to know that you understand this and to agree 

to talk to me. Is that something you can do?

Hernandez: I can try.

Townsend: Ok, would you be willing to sign here?

Hernandez: I guess. Well, what do I sign, my name? 

You [inaudible] my name.

Townsend: Is this your name right here?

Hernandez: [Inaudible] I was around in things that 

happened in the ’70s, supposedly. Everybody swears I 

wasn’t there. Do you know what I mean? I’ve got cousins 

upon cousins telling me, “You couldn’t have been there.” 

You know what I’m saying? “That didn’t happen.” Well, 

I know that happened. I was there. I was there when this 

happening [sic] in Grandma’s front yard. I was there 

when Grandpa kept bringing all this fucking [inaudible].

Hernandez: [Pointing at the rights advisory form and 

stating,] I just want to know if this is my name or not.

Townsend: Well, I believe that’s what your name to 

be. I mean you’ve got a tattoo there on your forearm that 

says “Desi.”

Hernandez: That’s why I’m slowly putting all this shit 

on my body.

Hernandez then complained that he was shocked with a Taser 

and began discussing other topics like his family and childhood. He then said, “You guys probably don’t even know 

where this is coming from. I’m just fed the fuck up. I’m fed 

up with lies.”
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At many times during the interview, Hernandez would 

change the topic or talk about things that were not responsive 

to the question he was asked. He spoke multiple times at length 

about his family, wondering whether various family members 

were actually his family members.

Hernandez also made multiple odd or nonsensical statements, such as statements about people having two stomachs 

like cows and about defecating being similar to having a child.

Townsend then told Hernandez that Hernandez’ perspective 

of what happened mattered. Hernandez interjected, “Yeah, I’m 

catching everything you are saying.”

Townsend asked Hernandez why he shot Debella, and 

Hernandez denied shooting him. Townsend told Hernandez 

that other people had told him that Hernandez shot Debella. 

Hernandez said, “Well as far as things go, anything I say can 

incriminate me and put me in prison.”

Townsend told Hernandez that Hall told him what had happened. Hernandez then claimed he was in the basement “smoking dope” with Debella and went upstairs to ask Hall and 

McPherson if they wanted to smoke dope. Hernandez did not 

want to wait on Hall, so he left. Hernandez claimed he did not 

hear any gunshot.

Townsend told Hernandez that what makes people interested in a case is “the why” behind what happened and that 

people want to know what Debella did to offend Hernandez. 

Hernandez said, “What did he do to offend me? Well, there’s 

a number of things.” Townsend asked him if he was upset that 

Debella was not cutting him in on his profits. Hernandez said, 

“It’s not about the profits, it’s about respect.” Later in the interview, Hernandez said, “Never once. [Debella’s] never showed 

me respect from the very first time I ever met him.” Townsend 

asked, “Is that why you got upset and shot him?” Hernandez 

said, “No, no, no. And I didn’t shoot him. Thanks for that addition, though.”

At some time during the interview, Hernandez said, “I 

think I’ll probably stop talking now.” Townsend said, “What’s 

that?” Hernandez repeated, “I think I’ll probably stop talking 
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now.” Townsend said “ok,” paused, and then started talking 

about the importance of getting Hernandez’ side of the story. 

Townsend then told Hernandez that he is a unique person. 

Hernandez replied:

And I’m very intelligent. I know what I’m doing. All 

this shit right here. [Circling the rights advisory form in 

pen and stating,] I don’t run around trying to do all this 

shit because I think I’m a badass or a hardass or I can 

prove something. I do all this because I know all this shit 

that happens [pointing at rights advisory form with a pen 

in hand] in the court of law. All this shit happens for a 

reason, which is good. And some of it I love too much, 

you know what I’m saying, as far as reading people’s 

cases, this and that, and the other. I can go and tell you 

where the judge, the prosecutor, and your lawyer fucked 

you. . . . I can tell you who can be judges and who can be 

lawyers and who can be prosecutors.

Townsend also asked Hernandez about the gun. Hernandez 

said, “That was [Debella’s] revolver. That revolver don’t belong 

to me.” Townsend asked Hernandez how, if the gun belonged 

to Debella, Hernandez ended up using it. He replied, “Let’s just 

say because [Debella’s] careless.”

Townsend again talked about the importance of honesty and 

asked Hernandez whether his story was going to change once 

DNA testing results were received. Townsend stressed that no 

matter what Hernandez had done, he could still have his integrity and honesty and not be a liar. Hernandez said, “A liar is a 

liar because they lie to themselves.”

Townsend asked Hernandez if he was lying to himself about 

shooting Debella. Hernandez said no. Townsend asked, “Did 

you shoot [Debella]?” Hernandez then confessed, “Did I shoot 

[Debella]? Yes, I did.” He told Townsend that he left the gun 

“right there.” When pressed more about his motive, Hernandez 

said, “He was stepping on my toes, we can say.”

Townsend asked Hernandez if he was sorry about what 

happened. Hernandez replied, “Of course I am.” He started 

talking about how he was raised and then said, “But as far as 
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[Debella] goes, if I could take everything back, that’s what I’d 

love to do.”

Near the end of the interview, Hernandez asked, “Who told 

you I shot [Debella]?” Townsend said, “You just told me that 

you shot [Debella].” Hernandez said, “Of course I did. But 

I also told many a people that Bill Clinton was my daddy. 

Or I shot John F. Kennedy too. Can you guys believe that? 

Would you believe that? No.” Similarly, several minutes later, 

Hernandez said, “You’re so convinced I shot him. . . . Who 

told you that I shot him?” Townsend said, “You just did.” 

Hernandez said, “I also told you that I shot John F. Kennedy. 

Can you prove that?”

At the end of the interview, Hernandez put his face in his 

hands, and as Townsend was starting to ask another question, 

Hernandez said, “Boss, I think we should end this interview 

right now. If we could please. I’d much rather talk later.” The 

investigators ended the interview, which lasted approximately 

2 hours.

6. Motion to Suppr

Prior to trial, Hernandez moved to suppress the statements 

made in the August 6, 2015, interview on the basis that 

they were involuntary or taken in violation of his Miranda4

rights. At a hearing to determine the statements’ admissibility, 

Hernandez argued that his statements were not voluntary and 

that he could not waive his Miranda rights “due to his mental 

state and the influence of illegal narcotics in his system.”

At the hearing, the video of the interview was introduced 

and the court heard testimony from Townsend and the Falls 

City Police Department’s chief of police.

Townsend testified that prior to Hernandez’ interview, investigators had spoken with Seager and Gates. Gates told investigators that Hernandez appeared to be “high” when he arrived 

at her house the day before the interview.

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).
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Townsend testified that a baggie of what appeared to contain methamphetamine was found on the passenger side of 

Seager’s truck, where Hernandez had been sitting. But no 

evidence of methamphetamine or other drug use was found in 

Gates’ residence where Hernandez was apprehended.

Townsend explained that his technique for interviews is to 

initially build rapport. He said that neither he nor Frederick 

yelled or raised their voices during the interview. The temperature and lighting in the interview room were normal. The 

interview lasted around 2 hours, without any breaks. Townsend 

said that Hernandez did not appear overly tired and was 

“very focused.”

Townsend testified that Hernandez did not demonstrate any 

behaviors associated with methamphetamine use at the time 

of the interview. Although Townsend did not know when 

Hernandez had last used methamphetamine or any other drugs, 

Hernandez had been in custody for approximately 12 hours, 

so Townsend assumed he had not had any during that time. 

Townsend thought Hernandez’ “odd” statements were the result 

of his personality or a “show or display.”

The district court overruled Hernandez’ motion to suppress. In its findings of fact, the court noted that the interview 

began approximately 111⁄2 hours after Hernandez was arrested. 

The court said that Hernandez “was articulate at times” and 

“appeared coherent throughout the interview.” The court said 

that Hernandez’ lack of focus “was not because Hernandez was 

delusional or under some type of drug but because he . . . [h]ad 

emotional difficulty trying to admit his actions involving his 

cousin [Debella] and . . . was aware of the legal consequences 

of his admission.”

The court concluded that Hernandez’ statements were not 

involuntarily made and that his Miranda waiver was also voluntary. It further found that his statement midway through the 

interview was not a clear, unequivocal, unambiguous invocation of the right to remain silent.
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7. Motion in L

Hernandez also filed a motion in limine to exclude certain 

statements made during the interview. The motion requested 

that the court exclude various statements, primarily about his 

past behavior and his family, on the basis of Neb. Evid. R. 401 

to 403.5

The district court overruled Hernandez’ motion in limine 

in part and in part sustained it. The court excluded statements by Hernandez about being in prison, about “screwing 

[a] bitch,” and about a prior assault conviction for slitting an 

individual’s throat. The court also found that “while there are 

many statements made by [Hernandez] during [the] interview 

that seem irrelevant[,] any unfair prejudice (403) is outweighed 

by [the] necessity for [the] fact finder to consider context 

within [the] interview and [Hernandez’] voluntariness of his 

ultimate confession.”

8. Closing Argume

At the conclusion of the State’s closing arguments, Hernandez 

moved for a mistrial based upon several statements made by 

the prosecuting attorney. These statements are set forth in 

greater detail in our discussion of Hernandez’ assignment of 

error on this topic. The district court overruled Hernandez’ 

motion for mistrial, finding that if any of the statements were 

improper, they were harmless.

9. Jury Verdicts and Se

The court instructed the jury on determining the voluntariness of the statements made by Hernandez in his interview 

with the investigators. The instruction required the jury to find 

that he understood what he was saying and made the statements freely and voluntarily under all of the circumstances. If 

the jury did not find that this was established by proof beyond 

a reasonable doubt, it was instructed to disregard the statements even if it believed them to be true.

5 See Neb. Rev. Stat. §§ 27-401 to 27-403 (Reissue 2016).
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The jury found Hernandez guilty on all three counts. He 

was sentenced to life imprisonment for the first degree murder 

conviction and 3 to 7 and 5 to 10 years’ imprisonment on the 

other two convictions, all to run consecutively.

III. ASSIGNMENTS OF ERROR

Hernandez assigns, combined and restated, that the district 

court erred in (1) admitting the video of his interview with 

law enforcement officials, (2) not redacting various statements 

made in the interview pursuant to evidence rules 401 to 403, 

and (3) overruling his motion for mistrial based on statements 

made by the prosecution in closing arguments.

IV. STANDARD OF REVIEW

[1] Whether a defendant voluntarily made a statement 

while in custody and whether a defendant unambiguously 

invoked his or her right to remain silent or to have counsel 

present are mixed questions of law and fact. We review a trial 

court’s finding of historical facts for clear error and independently determine whether those facts satisfy the constitutional standards.6

[2] A trial court has the discretion to determine the relevancy 

and admissibility of evidence, and such determinations will 

not be disturbed on appeal unless they constitute an abuse of 

that discretion.7

[3,4] Whether to grant a motion for mistrial is within the 

trial court’s discretion, and this court will not disturb its ruling 

unless the court abused its discretion.8 A mistrial is properly 

granted in a criminal case where an event occurs during the 

course of a trial which is of such a nature that its damaging 

effect cannot be removed by proper admonition or instruction 

to the jury and thus prevents a fair trial.9

6 State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

7 State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

8 Id.

9 Id.
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V. ANALYSIS

Before delving into the assignments of error, we note that it 

is not entirely clear from Hernandez’ brief whether his constitutional arguments are grounded solely in the U.S. Constitution 

or also in the Nebraska Constitution. Because Hernandez has 

not argued to the contrary, we will adhere to our practice of 

construing the provisions of the bill of rights in article I of the 

Nebraska Constitution in lockstep with the U.S. Supreme Court’s 

construction of parallel provisions in the U.S. Constitution.10

1. Admission of Video Inte

We first consider Hernandez’ assignment that the district 

court erred in overruling his motion to suppress and admitting the video of his interview with law enforcement officials. 

Hernandez argues that the video should have been excluded 

because the statements in the video were obtained involuntarily in violation of the Fifth Amendment prohibition of compelled self-incrimination, Hernandez did not validly waive his 

Miranda rights, and Hernandez invoked his right to remain 

silent during the interview.

(a) Voluntariness of Confession

[5] The 5th Amendment to the U.S. Constitution—applicable to state governments by incorporation through the 14th 

Amendment—protects against compelled self-incrimination by 

providing that “[n]o person shall be . . . compelled in any 

criminal case to be a witness against himself . . . .”11 This constitutional provision, along with the Due Process Clause of the 

14th Amendment, prevents the use of involuntary confessions 

in criminal prosecutions.12 Likewise, the Nebraska Constitution 

10 See, State v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017); State v. Rocha, 

supra note 7; State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

11 U.S. Const. amend. V; Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. 

Ed. 2d 653 (1964).

12 Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 

405 (2000); Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 

908 (1964); State v. Turner, 288 Neb. 249, 847 N.W.2d 69 (2014).
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bars the use of involuntary confessions.13 These constitutional 

protections are rooted not only in the risk of false confessions 

flowing from the use of coercion, but also in the right of citizens to be free from oppressive overreaching at the hands of 

government officials.14

[6] To overcome a motion to suppress, the prosecution has 

the burden to prove by a preponderance of the evidence that 

incriminating statements by the accused were voluntarily given 

and not the product of coercion.15

[7] In determining whether an accused’s statement was given 

freely and voluntarily, courts examine police conduct in light 

of the totality of the circumstances, including the tactics used 

by the police and the details of the interrogation.16 Importantly 

for Hernandez’ argument, relevant factors include any characteristics of the accused known to police, which might cause his 

or her will to be easily overborne, such as a defendant’s mental 

state or intoxication.17

Hernandez argues that the statements made in the video interview were not voluntary for purposes of the Fifth Amendment, 

because they were made while he was under the influence of 

methamphetamine. We disagree.

While intoxication is relevant to determining whether police 

conduct amounted to coercion, “[i]ntoxication does ‘not automatically render a confession involuntary . . . .’”18

[8] We have repeatedly said that coercive police activity 

is a necessary predicate to a finding that a confession is not 

13 Neb. Const. art. I, §§ 3 and 12.

14 See, Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 

(1986); Jackson v. Denno, supra note 12.

15 State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).

16 See State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).

17 See, State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992); State v. Lamb, 

213 Neb. 498, 330 N.W.2d 462 (1983).

18 U.S. v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016).
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voluntary.19 The prohibition on the use of involuntary confessions is at its core—like other constitutional rights—a limitation on the power of government.20 Thus, the focus of this 

inquiry is on the conduct of governmental actors.21

This principle is demonstrated in the U.S. Supreme Court 

case Colorado v. Connelly,

22 in which the defendant approached 

a police officer on the street and made an unprompted confession that he had murdered someone and wanted to talk about 

it. The confession was suppressed by a Colorado trial court, 

and the suppression was affirmed by the Colorado Supreme 

Court, based on evidence that the defendant suffered from 

schizophrenia and was in a psychotic state at the time of the 

confession.23 The defendant heard what he believed to be the 

“‘voice of God’” telling him to confess to the murder or commit suicide.24 The Colorado courts concluded that the confession was involuntary, because it was not “‘the product of a 

rational intellect and a free will.’”25

The U.S. Supreme Court reversed the decision of the 

Colorado Supreme Court, concluding that the confession was 

voluntary for purposes of the Due Process Clause.26 The Court 

said that its voluntariness cases have all “focused upon the 

19 See State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016). See, also, State 

v. Dubray, supra note 10; State v. McClain, supra note 15; State v. Landis, 

281 Neb. 139, 794 N.W.2d 151 (2011); State v. Goodwin, 278 Neb. 945, 

774 N.W.2d 733 (2009).

20 See, generally, NCAA v. Tarkanian, 488 U.S. 179, 109 S. Ct. 454, 102 L. 

Ed. 2d 469 (1988) (state action doctrine); Colorado v. Connelly, supra note 

14 (coercion and state action); State v. Dubray, supra note 10 (confession 

to private citizens).

21 Colorado v. Connelly, supra note 14. See, also, State v. Dubray, supra

note 10.

22 Colorado v. Connelly, supra note 14.

23 Id.

24 Id., 479 U.S. at 161.

25 Id., 479 U.S. at 162.

26 Colorado v. Connelly, supra note 14.
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crucial element of police overreaching” and each contained “a 

substantial element of coercive police conduct.”27 The Court 

contrasted the facts in Connelly to the facts of a prior case28 in 

which a confession was deemed involuntary where the police 

knew of a defendant’s history of mental illness and exploited it 

with coercive tactics such as an 8- to 9-hour interrogation in a 

tiny room in isolation from family, friends, or legal counsel.29

The Court reversed, because it concluded that the Colorado 

Supreme Court’s approach “fail[ed] to recognize the essential 

link between coercive activity of the State, on the one hand, 

and a resulting confession by a defendant, on the other.”30

Again, the primary basis of Hernandez’ argument is that 

he was under the influence of methamphetamine. He points 

to the fact that, as the investigators knew, he had used methamphetamine the day before the interview. He also points to 

the many odd statements made during the interview. He also 

raises the question of whether he had adequate sleep prior to 

the interview.

Applying the voluntariness factors set forth above, a review 

of the video interview reveals no overreaching or coercive 

conduct by law enforcement.

The demeanor of each investigator was calm and relaxed. 

Throughout the interview, Townsend focused on building rapport with Hernandez and appealing to his better instincts, such 

as a belief in the importance of telling the truth. The investigators never raised their voices, took an aggressive demeanor, 

or unfairly manipulated or lied to Hernandez. Hernandez was 

also allowed to speak at length without interruption on a variety of topics well afield of the scope of the interview, with 

eventual gentle redirection.

27 Id., 479 U.S. at 163, 164.

28 Blackburn v. Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L. Ed. 2d 242 

(1960).

29 Colorado v. Connelly, supra note 14.

30 Id., 479 U.S. at 165.
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The interview was only about 2 hours long, and there was 

nothing unusual or oppressive about the environment in which 

it was conducted. There is no evidence in the record that 

Hernandez was ever kept from sleeping, and Townsend testified that Hernandez appeared reasonably well rested.

Hernandez undoubtedly made numerous strange statements 

in the interview. It is possible he felt some effect from the 

residual methamphetamine in his body from smoking the day 

before, was not in a state of full mental health, or both. But 

such facts are not dispositive. As we have explained, intoxication and mental illness alone are insufficient to render a 

confession involuntary.31 The record belies any notion that the 

investigators exploited Hernandez’ mental state in order to 

overbear his will and wring out a confession. To the contrary, 

Hernandez was certainly coherent and able to intelligently 

answer questions with specificity and in a reasonably articulate 

manner when he chose to do so. The questioning was entirely 

appropriate for someone in Hernandez’ state.

Moreover, some of Hernandez’ statements indicate that several of his strange comments may have been strategic, rather 

than the product of drugs or his mental condition. When confronted with the fact that he said he shot Debella, he said, “Of 

course I did. But I also told many a people that Bill Clinton 

was my daddy. Or I shot John F. Kennedy too. Can you guys 

believe that? Would you believe that? No.” He made a similar comment after another reminder of his previous confession: “I also told you that I shot John F. Kennedy. Can you 

prove that?”

These statements show that, at least sometimes, Hernandez 

made absurd statements in an effort to undermine the credibility of his incriminating statements. It is thus doubtful 

whether all of his off-the-wall comments were truly the result 

of intoxication or an unsound mental state.

31 See, Colorado v. Connelly, supra note 14; U.S. v. Jones, supra note 18. 

See, also, State v. Goodwin, supra note 19.
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Additionally, Hernandez’ ability to think clearly was illustrated by the fact that he began the interview by asking the 

Nebraska investigators why they were questioning him in 

Kansas. Questioning the territorial scope of law enforcement 

jurisdiction reveals a reasonably cogent mind.

Because we find no evidence of coercion on the part of law 

enforcement officials, we conclude that Hernandez’ statements 

were made voluntarily. The district court did not err in overruling Hernandez’ motion to suppress or his trial objections 

regarding the admission of the video interview.

(b) Waiver of Miranda Rights

Hernandez also argues that the district court erred in admitting the video interview, because he did not voluntarily waive 

his Miranda rights to remain silent and to counsel.

In Miranda v. Arizona,

32 the U.S. Supreme Court announced 

the rule that confessions obtained in custodial interrogations 

may not be used in criminal prosecutions unless certain procedural safeguards were met, including advising the detainee 

of his or her constitutional right to remain silent and right 

to counsel.33 These rights must be knowingly and voluntarily waived.34

Although the Miranda rule and the requirement that confessions be made voluntarily both arise out of the Fifth 

Amendment, the question of whether a custodial interrogation complies with Miranda is distinct from the question 

of whether statements made during a custodial interrogation 

were sufficiently voluntary.35 The Miranda warnings are an 

“absolute prerequisite” to custodial interrogation; statements 

made during a custodial interrogation in the absence of these 

32 Miranda v. Arizona, supra note 4.

33 Id.

34 Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); 

Miranda v. Arizona, supra note 4; State v. Goodwin, supra note 19.

35 See, Miranda v. Arizona, supra note 4; State v. Rogers, 277 Neb. 37, 760 

N.W.2d 35 (2009); State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).
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warnings and a valid Miranda waiver are inadmissible, even if 

otherwise voluntarily made.36

[9] To be a valid waiver of Miranda rights, the waiver must 

be “‘knowing’ and ‘voluntary.’”37 A waiver is “knowing” if 

it is “made with a full awareness of both the nature of the 

right being abandoned and the consequences of the decision 

to abandon it.”38 A waiver is “voluntary” if it is “the product 

of a free and deliberate choice rather than [through] intimidation, coercion, or deception.”39 The standard for determining 

voluntariness in the context of a Miranda waiver is the same 

standard used to determine the voluntariness of confessions, 

which we have discussed in detail above.40 Whether a knowing 

and voluntary waiver has been made is determined by looking 

to the totality of the circumstances.41

The parties do not dispute that Hernandez was given a 

Miranda rights advisory. The issue is whether Hernandez 

knowingly and voluntarily waived his Miranda rights. After a 

review of the evidence, we find that he did.

First, several of Hernandez’ statements show that he understood his rights. One comment is of unique importance. At 

one point in the interview, Hernandez said, “[A]nything I say 

can incriminate me and put me in prison.” This statement is 

strong evidence of his understanding of his rights. Additionally, 

Hernandez’ clear and unequivocal invocation of his right to 

remain silent at the end of the interview indicates that he 

understood that right as well.

Hernandez also boasted of his understanding of the legal 

system, saying, “I know all this shit that happens in the court 

36 Miranda v. Arizona, supra note 4, 384 U.S. at 468.

37 Moran v. Burbine, supra note 34, 475 U.S. at 419. Accord State v. 

Goodwin, supra note 19.

38 Moran v. Burbine, supra note 34, 475 U.S. at 421.

39 Id.

40 See Colorado v. Connelly, supra note 14.

41 State v. Burries, supra note 6.
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of law.” He spoke about how he liked to read other people’s 

cases and understood how they were disadvantaged by the 

legal system.

Testimony was presented at the suppression hearing that 

Hernandez was questioned in connection with a prior assault 

conviction, and at that time, he signed a rights advisory form 

and seemed to understand his rights.

Hernandez also expressly indicated that he understood his 

rights. When Townsend asked him if he understood, Hernandez 

said “Yeah, I’m still focusing on the shooting.” After Hernandez 

gave this response, Townsend asked him, “Do you want me to 

explain or to repeat any of that?” Hernandez shook his head 

“no,” indicating that he understood his rights.

[10,11] Not only did Hernandez understand his rights, but 

he voluntarily waived them. An express waiver of a suspect’s 

Miranda rights is not required to be made in writing; an oral 

waiver is sufficient.42 In addition, the U.S. Supreme Court has 

said that a Miranda waiver need not be express, but can be 

implied.43 A “defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver,” may 

establish a valid, implied waiver.44 Thus, “[w]here the prosecution shows that a Miranda warning was given and that it was 

understood by the accused, an accused’s uncoerced statement 

establishes an implied waiver of the right to remain silent.”45

As discussed, the evidence shows that Hernandez understood 

these rights. Thus, by voluntarily speaking with the investigators, Hernandez impliedly waived his rights.46

42 U.S. v. Sturdivant, 796 F.3d 690 (7th Cir. 2015); U.S. v. Murdock, 491 F.3d 

694 (7th Cir. 2007). See, also, North Carolina v. Butler, 441 U.S. 369, 99 

S. Ct. 1755, 60 L. Ed. 2d 286 (1979).

43 Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 

(2010).

44 North Carolina v. Butler, supra note 42, 441 U.S. at 373.

45 Berghuis v. Thompkins, supra note 43, 560 U.S. at 384.

46 See, Berghuis v. Thompkins, supra note 43; North Carolina v. Butler, supra

note 42.
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Not only did Hernandez’ conduct constitute an implied 

waiver, but he also validly provided an express oral waiver. 

When Townsend asked Hernandez if he would be willing to 

speak with him, Hernandez said, “I can try.” When asked to 

sign the rights advisory form to express this waiver in writing, he said, “I guess,” and leaned forward to sign before getting sidetracked and moving on to another topic. Hernandez’ 

statements and conduct constitute an express waiver of his 

Miranda rights.

(c) Invocation of Right 

to Remain Silent

Hernandez also argues that the video interview should have 

been excluded, because he invoked his right to remain silent 

when he said, “I think I’ll probably stop talking now.” We 

disagree. An invocation of the right to remain silent or right to 

counsel must be clear, unambiguous, and unequivocal.47

[12] Here, to “think” about “probably” being silent is 

ambiguous and equivocal. In State v. Rogers,

48 we discussed 

how statements prefaced by equivocal words like “I think,” 

“maybe,” or “I believe” generally do not constitute a clear, 

unambiguous, and unequivocal invocation.

Hernandez’ equivocal statement about how he thought he 

would “probably stop talking” stands in stark contrast to his 

unequivocal invocation of his right to remain silent at the end 

of the interview, which was scrupulously honored. Hernandez 

said, “Boss, I think we should end this interview right now. If 

we could please. I’d much rather talk later.” When he wanted 

to exercise his right to remain silent, rather than merely 

musing about probably stopping talking, Hernandez was very 

capable of requesting that the interviewers “end this interview 

right now.”

47 See, Berghuis v. Thompkins, supra note 43; Davis v. United States, 512 

U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994); State v. Rogers, 

supra note 35.

48 State v. Rogers, supra note 35.
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We conclude that Hernandez’ statement, “I think I’ll probably stop talking now,” was not a clear, unambiguous, and 

unequivocal of his right to remain silent and terminate the 

custodial interrogation.

Because Hernandez validly waived his Miranda rights, voluntarily spoke with the investigators, and did not subsequently 

invoke his right to remain silent until the end of the interview, we conclude that the district court did not err in denying Hernandez’ motion to suppress and trial objections to the 

video interview.

2. Relevance and Rul

Hernandez also argues that the district court erred in overruling in part his motion in limine and trial objections and 

admitting various statements in Hernandez’ interview with 

the investigators. He argues first that these statements were 

not relevant and, secondly, that even if relevant, the statements should have been excluded under rule 403. We conclude 

that the district court did not abuse its discretion in finding 

the statements were relevant. Nor did it abuse its discretion 

in finding that the statements were not inadmissible under 

rule 403.

(a) Relevance

[13] Evidence which is not relevant is inadmissible.49 To be 

relevant, evidence must be probative and material.50 Evidence 

is probative if it has any tendency to make the existence of a 

fact more or less probable than it would be without the evidence.51 A fact is material if it is of consequence to the determination of the case.52

The district court determined that Hernandez’ statements 

were relevant to show the voluntariness of his confession in 

49 § 27-402.

50 State v. Rocha, supra note 7.

51 Id.

52 Id.
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his interview with law enforcement. We find that this was not 

an abuse of discretion.

At the suppression hearing, the State was required to prove 

that Hernandez’ confession was voluntary by a preponderance 

of the evidence. At trial, in order to rely on the confession, 

the jury was required to find voluntariness beyond a reasonable doubt. Thus, evidence probative of the voluntariness of 

Hernandez’ statements in the interview is relevant and the 

statements made by Hernandez in the interview are undoubtedly relevant to the voluntariness of Hernandez’ confessions in 

the interview. Accordingly, the district court did not abuse its 

discretion in determining that the statements Hernandez sought 

to exclude were relevant.

(b) Rule 403

Even relevant evidence is not automatically admissible.53 It 

must pass muster under rule 403.54 Under rule 403, the probative value of the evidence must not be substantially outweighed 

by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury.55

[14,15] Rule 403 considers the danger of unfair prejudice. 

Most, if not all, evidence offered by a party is calculated to 

be prejudicial to the opposing party.56 In the context of rule 

403, unfair prejudice means an undue tendency to suggest a 

decision based on an improper basis.57 Unfair prejudice speaks 

to the capacity of some concededly relevant evidence to lure 

the fact finder into declaring guilt on a ground different from 

proof specific to the offense charged, commonly on an emotional basis.58 When considering whether evidence of other 

53 Id.

54 Id.; § 27-403.

55 State v. Rocha, supra note 7.

56 State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

57 Id. See, also, State v. Baker, supra note 10; State v. Rocha, supra note 7.

58 State v. Oldson, supra note 56.
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acts is unfairly prejudicial, we consider whether the evidence 

tends to make conviction of the defendant more probable for 

an incorrect reason.59

When trial courts admit recorded conversations or interviews, it does not follow that they must be in an unredacted 

form.60 Hernandez rightly points out that “[c]onfessions are not 

an all-or-nothing proposition.”61

We first note that the district court did sustain Hernandez’ 

motion in limine in part and excluded discussion of an incident 

where he slit a person’s throat, a reference to being in prison, 

and a comment about “screwing [a] bitch.” These statements, 

especially the lengthy discussion about his prior assault, certainly bear a significant risk of unfair prejudice.

But the statements that the district court admitted and that 

Hernandez challenges do not bear the same risk of unfair 

prejudice. The bulk of the statements challenged by Hernandez 

pertain to his family. His brief refers to the “perceived 

abuse inflicted upon Hernandez by his parents.”62 His statements show a negative perception of many family members. 

Additionally, his wondering whether various family members 

are truly his family members is a recurring theme.

Hernandez’ statements about his family do not bear a significant risk of unfair prejudice. The fact that Hernandez does 

not have a healthy relationship with or a positive view of 

some members of his family, or that he has suffered abuse, 

is unlikely to make the jury more likely to convict him on 

that improper basis. This is not to say that there is no risk 

of unfair prejudice from these statements, just that it is not 

substantial.

Hernandez’ statements about his family also have some 

probative value on the issue of voluntariness. As discussed 

59 Id.

60 See State v. Rocha, supra note 7.

61 Brief for appellant at 39.

62 Id.
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above, the voluntariness of a statement is considered in light 

of the totality of the circumstances, including the suspect’s 

mental state or intoxication.63 Hernandez wondered at various times whether certain family members were who he was 

told they were. These comments, which could be characterized as paranoia, have some probative value with respect to 

Hernandez’ mental state or intoxication, and thus with respect 

to the issue of voluntariness.

Hernandez also sought to exclude statements in which he 

referenced “gang-banging” in his past and not believing in 

God. While these types of statements generally can carry a risk 

of unfair prejudice, they were in this case isolated statements in 

the context of a 2-hour interview. These comments were made 

briefly and were not repeated. This is not to say that there is no 

risk of unfair prejudice, but merely that the risk of prejudice is 

not nearly as grave as if the interview contained an extended 

conversation on these topics.

In sum, Hernandez’ statements about his family have little 

risk of unfair prejudice but also only moderate probative value. 

His statements about “gang-banging” and not believing in God 

carry some risk of prejudice, but not significant given the isolated and brief nature of those comments. Whether the risk of 

unfair prejudice substantially outweighed the probative value 

of these statements is a question left to the discretion of the 

trial court.64 We conclude that the district court did not abuse 

its discretion by overruling in part Hernandez’ motion in limine 

and trial objections.

3. Closing Stateme

Finally, we turn to Hernandez’ assignment that the district 

court erred in overruling his motion for mistrial on the basis 

that statements made by the prosecuting attorney in his closing 

arguments constitute prosecutorial misconduct.

63 See State v. Goodwin, supra note 19.

64 See State v. Baker, supra note 10.
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[16] When considering a claim of prosecutorial misconduct, we first consider whether the prosecutor’s acts constitute misconduct.65 We have acknowledged that “prosecutorial 

misconduct” cannot be neatly defined, but we have said that 

generally, it encompasses conduct that violates legal or ethical standards for various contexts because the conduct will or 

may undermine a defendant’s right to a fair trial.66 We have 

also said that a prosecutor’s conduct that does not mislead and 

unduly influence the jury is not misconduct.67

[17] If we conclude that a prosecutor’s acts were misconduct, we next consider whether the misconduct prejudiced 

the defendant’s right to a fair trial.68 Prosecutorial misconduct 

prejudices a defendant’s right to a fair trial when the misconduct so infects the trial that the resulting conviction violates 

due process.69

Hernandez divides the statements into two categories of 

prosecutorial misconduct: statements of personal belief/

imprimatur of government and statements that inflame the 

prejudices or excite the passions of the jury against the 

accused. We consider each in turn.

(a) Statements of Personal Belief/

Imprimatur of Government

[18,19] Prosecutors generally may not give their personal 

opinions on the veracity of a witness or the guilt or innocence of the accused.70 The principle behind this rule is that 

65 See State v. Dubray, supra note 10.

66 Id.

67 Id.

68 Id.

69 Id.

70 See Neb. Ct. R. of Prof. Cond. § 3-503.4 (“[a] lawyer shall not . . . in trial, 

. . . state a personal opinion as to the justness of a cause, the credibility 

of a witness, the culpability of a civil litigant or the guilt or innocence of 

an accused”). See, also, State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 

(2016).
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the prosecutor’s opinion carries with it the imprimatur of 

the government and may induce the jury to trust the government’s judgment rather than its own view of the evidence.71

Stated differently, when a prosecutor asserts his or her personal opinions, the jury might be persuaded by a perception 

that counsel’s opinions are correct because of his position 

as a prosecutor, rather than being persuaded by the evidence. Thus, when a prosecutor’s comments rest on reasonably drawn inferences from the evidence, the prosecutor is 

permitted to present a spirited summation that a defense 

theory is illogical or unsupported by the evidence and to highlight the relative believability of witnesses for the State and 

the defense.72

Hernandez argues that the prosecutor in this case made 

a number of statements improperly expressing his personal 

beliefs. These statements include:

[1] The fact that he had a point to prove and that he then 

acted upon that point by shooting . . . Debella is among 

the numerous reasons the State of Nebraska believes that 

this crime is a premeditated first degree murder because 

it shows he thought about what he wanted to do and 

hoped to accomplish before he actually did it.

. . . .

[2] The State believes that when you consider all of 

the evidence, not just one piece, not just two, but you 

consider all the evidence in totality, the State believes 

that it has more than satisfied its burden to prove that 

this is, in fact, a first degree premeditated murder committed by . . . Hernandez, and that he, likewise, used a 

firearm to commit a felony, that being the murder, and 

was a felon at the time he committed his offense and it 

was unlawful for him to possess that gun he used to kill 

. . . Debella.

71 United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).

72 See State v. Gonzales, supra note 70.
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[3] Accordingly, the State of Nebraska is asking you, 

based upon the totality of the circumstances, evidence, 

testimony you’ve heard over these past four days, to 

return a guilty verdict against . . . Hernandez for each of 

these crimes.

[4] Ladies and Gentlemen, to be perfectly honest with 

you, when looking and reflecting back on the testimony 

and evidence you’ve heard throughout the course of this 

case, I don’t know that there is sufficient words in the 

dictionary or adjectives in the thesaurus to describe the 

selflessness [sic], the senseless, the heartlessness, the disgusting acts committed not by just by . . . Hernandez but, 

also, by the likes of John Hall, Brett Winters, and Dave 

McPherson. It, honestly, made me sick and it makes me 

sick that the State had to present any of these witnesses 

before you in its case in chief in hopes that you’ll realize 

that this was only necessary because of the fact that . . . 

Debella was the victim of the ultimate injustice that one 

human can commit against another.

. . . .

[5] So the State believes that [the testimony of the firearms examiner] has helped us corroborate another thing 

that . . . Hernandez tells us in his statement and that is 

that he left that gun there.

After reviewing these statements, we find that the first, second, third, and fifth statements do not constitute prosecutorial 

misconduct. Although each of these statements contains the 

phrases “the State believes” or “the State of Nebraska is asking you,” merely using such phrases does not turn an otherwise 

proper summation of the evidence into an improper one.73

In the first statement, the prosecutor was relying on 

Hernandez’ statement that he “had a point to prove” as evidence 

that the murder was premeditated. Although the prosecutor said 

73 See State v. Green, 287 Neb. 212, 229, 842 N.W.2d 74, 91 (2014) (“[s]o, 

while the prosecutor might have referenced his personal beliefs, it appears 

that such were a deduction from the evidence”).
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“the State of Nebraska believes,” within that statement, the 

prosecutor was merely attempting to point to evidence supporting a finding that the murder was premeditated.

In the second statement, although the prosecutor again used 

the statement “the State believes,” the prosecutor was simply 

arguing that the jury should consider all the evidence and find 

that the State had met its burden. This is not improper.

In the third statement, the prosecutor said that “the State 

of Nebraska is asking you, based upon the totality of the circumstances, evidence, [and] testimony . . . to return a guilty 

verdict.” Again, the prosecutor is merely asking the jury to 

consider all the evidence and to return a guilty verdict, which 

is not improper.

In the fifth statement, the prosecutor said that “the State 

believes that [the testimony of the firearms examiner] has 

helped us corroborate another thing that . . . Hernandez tells 

us in his statement and that is that he left that gun there.” 

Although the phrase “the State believes” is used, the prosecutor is simply arguing that certain evidence—the expert’s testimony—helped corroborate Hernandez’ statement.

Although we find that these specific statements were not 

misconduct within their context in this particular case, there 

are many circumstances where “I” statements—“I think,” 

“I know,” “I believe,” “the State of Nebraska believes,” et 

cetera—could be considered as conveying a personal opinion 

and are thus misconduct.

We have previously encouraged prosecutors to preface 

any questionable statements with the phrase “‘the evidence 

shows.’”74 We emphasize, once again, that prosecutors could 

easily avoid an appearance of impropriety by simply substituting “I believe” or “the State believes” with the simple phrase 

“the evidence shows.”

The fourth statement is another matter. It contains an 

improper personal opinion not based on any evidence. Within 

that statement, the prosecutor told the jury that it “honestly” 

74 State v. Gonzales, supra note 70, 294 Neb. at 649, 884 N.W.2d at 119.
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“made [him] sick” that the State had to present certain witnesses as part of its case in chief. Although we understand that 

the prosecutor was attempting to acknowledge the lack of credibility in his witnesses, the manner in which he attempted to 

do so was highly improper. This statement was not a summation of the evidence. The prosecutor was expressing a personal 

opinion not based on any evidence; this is clearly prosecutorial 

misconduct.

The fourth statement also constitutes prosecutorial misconduct for other reasons, which shall be discussed below.

(b) Statements That Inflame Prejudices 

or Excite Passions of Jurors

[20] Prosecutors also may not inflame the jurors’ prejudices 

or excite their passions against the accused.75 Prosecutors 

should not make statements or elicit testimony intended to 

focus the jury’s attention on the qualities and personal attributes of the victim.76 These facts lack any relevance to the 

criminal prosecution and have the potential to evoke jurors’ 

sympathy and outrage against the defendant.77

Hernandez argues that the fourth statement, described above, 

was intended to inflame the prejudices of the jurors and to 

excite their passions. He makes the same argument regarding 

the following statements made by the prosecutor in his closing arguments:

[6] From every account you’ve heard these past four 

days, including that given by . . . Hernandez, . . . 

Debella’s sins were, at most, punishable by incarceration, 

not eternal rest in a coffin, particularly at the hands of a 

man whose primary complaint was that . . . Debella was 

stepping on his toes.

. . . .

75 State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). See, also, State 

v. Dubray, supra note 10.

76 State v. Iromuanya, supra note 75.

77 Id.
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[7] We know that [Debella] fought hard for his life. 

We heard about how he was gasping for breath and trying 

to hang on. We know that he held on in the hospital for 

eight days afterwards with the assistance of machines. We 

heard from [his mother] about the heart-wrenching decision she had to make in taking him off those machines . . 

. . She held on as long as she could.

Hernandez also complains that the prosecutor referred to the 

other individuals living in the Brownell house as “vermin,” 

“riffraff,” and “lowlife people, so low that they would let a 

bleeding man lie on the floor.”

We agree with Hernandez that all of these statements constitute prosecutorial misconduct. The prosecutor’s comment 

about “the selflessness [sic], the senseless, the heartlessness, 

the disgusting acts” committed by Hernandez and others was 

clearly improper. This type of a comment is an appeal to the 

emotions of the jurors, not an argument regarding any of the 

elements of the crimes charged. The prosecutor’s comments 

about Debella’s fighting for his life and Debella’s mother’s 

having to make the “heart-wrenching” decision to take him off 

life support, as well as the reference to Debella’s being punished by “eternal rest in a coffin,” were all clearly intended to 

play on the jurors’ emotions by attempting to draw sympathy to 

Debella and his mother, which is entirely improper.78

Referring to the individuals that lived in the Brownell house 

as “vermin,” “riffraff,” and “lowlife people” is improper. This 

type of name calling has no place in a criminal prosecution. 

While this language was not directed at Hernandez, it was 

used to describe those living in the Brownell house. This language certainly reflected on Hernandez by his association with 

those individuals.

Because we find that the prosecutor’s statements constituted prosecutorial misconduct, we must consider whether 

the misconduct prejudiced Hernandez’ right to a fair trial. 

78 See id.
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As we said in another prosecutorial misconduct case, “the 

prosecutor has dodged a reversal” in this case.79 Despite the 

fact that a number of the prosecutor’s statements constitute 

prosecutorial misconduct, the evidence against Hernandez is 

overwhelming and the misconduct did not prejudice his right 

to a fair trial.

[21,22] Whether prosecutorial misconduct is prejudicial 

depends largely upon the context of the trial as a whole.80 In 

determining whether a prosecutor’s improper conduct prejudiced the defendant’s right to a fair trial, we consider the following factors: (1) the degree to which the prosecutor’s conduct or remarks tended to mislead or unduly influence the jury, 

(2) whether the conduct or remarks were extensive or isolated, 

(3) whether defense counsel invited the remarks, (4) whether 

the court provided a curative instruction, and (5) the strength 

of the evidence supporting the conviction.81

While the prosecutor made several improper remarks in closing arguments, and while a curative instruction from the court 

would have been warranted, we cannot say that Hernandez’ 

right to a fair trial was prejudiced.

Most importantly, the evidence against Hernandez was 

overwhelming. Hernandez confessed to shooting Debella to 

numerous relatives who testified at trial. Moreover, he confessed to law enforcement in a video interview that was 

played for the jury. He was seen shortly after the shooting 

by those in the upstairs of the house. There was no evidence 

that Debella’s death was the result of suicide, and there was 

little to no evidence of any alternative theory of Debella’s 

murder. The jury could also infer Hernandez’ guilt from the 

fact that he ran from police and resisted arrest. It would simply stretch credulity to think that the jury found Hernandez 

guilty because of the prosecutor’s improper statements rather 

79 State v. Dubray, supra note 10, 289 Neb. at 228, 854 N.W.2d at 605.

80 State v. Iromuanya, supra note 75.

81 See id.
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than because of the overwhelming and undeniable evidence 

of his guilt.

For these reasons, we conclude that Hernandez’ right to a 

fair trial was not prejudiced and the district court did not abuse 

its discretion in overruling Hernandez’ motion for mistrial.

VI. CONCLUSION

For the reasons set forth herein, we affirm.

Affirmed

Miller-Lerman, J., participating on brie

Wright, J., not participating

Miller-Lerman, J., concurri

I concur. The prosecutor’s improper statements made in his 

closing remarks constituted serious prosecutorial misconduct. 

Were it not for the strength of the evidence supporting the convictions, I would reverse.

Cassel, J., joins in this concurrence.