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Nebraska Supreme Court Advance Sheets

294 Nebraska Reports

STATE v. MITCHELL

Cite as 294 Neb. 832

State of Nebraska, appellee, v. 

Travis T. Mitchell, appellant.

___ N.W.2d ___

Filed September 23, 2016. No. S-15-086.

1. Motions for Mistrial: Appeal and Error. The decision whether to 

grant a motion for mistrial will not be disturbed on appeal in the absence 

of an abuse of discretion.

2. 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 that 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.

3. Trial: Testimony: Constitutional Law: Arrests: Impeachment. A 

defendant waives his or her Fifth Amendment protections when the 

defendant takes the stand and testifies which, in turn, allows his or her 

prearrest silence to be used for impeachment.

4. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is 

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

5. 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) 

the strength of the evidence supporting the conviction.

6. Trial: Prosecuting Attorneys. When a prosecutor’s comments rest on 

reasonably drawn inferences from the evidence, he or she 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.

Nebraska Supreme Court Online Library

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

09/23/2016 08:09 AM CDT
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STATE v. MITCHELL

Cite as 294 Neb. 832

7. Motions for Mistrial: Motions to Strike: Proof: Appeal and Error. 

Error cannot ordinarily be predicated on the failure to grant a mistrial if 

an objection or motion to strike the improper material is sustained and 

the jury is admonished to disregard such material.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Irwin and Inbody, Judges, on appeal 

thereto from the District Court for Lancaster County, John A. 

Colborn, Judge. Judgment of Court of Appeals affirmed.

Joseph D. Nigro, Lancaster County Public Defender, 

Christopher Eickholt, and Nathan J. Sohriakoff for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Kelch, J.

INTRODUCTION

Travis T. Mitchell was convicted of driving under the influence (DUI), fourth offense, with refusal to submit to a chemical test, and for driving during revocation. The Nebraska Court 

of Appeals affirmed, see State v. Mitchell, 23 Neb. App. 657, 

876 N.W.2d 1 (2016), and we granted Mitchell’s petition for 

further review. Mitchell argues that the district court erred in 

overruling his motion for mistrial based on the prosecutor’s 

comments to the jury during closing arguments concerning 

Mitchell’s postarrest, pre-Miranda silence. We affirm the judgment of the Court of Appeals that affirmed Mitchell’s convictions and sentences.

BACKGROUND

On June 6, 2014, after a vehicular pursuit in Lincoln, 

Nebraska, police apprehended Mitchell in front of his residence. The State charged Mitchell with DUI with refusal to 

submit to a chemical test and with driving during revocation, 
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STATE v. MITCHELL

Cite as 294 Neb. 832

and the district court conducted a jury trial. Mitchell elected 

not to testify.

Three different officers observed Mitchell’s driving before 

he returned home and was arrested. All three officers testified 

at Mitchell’s trial, and based on their experience and observations, all three opined Mitchell showed signs that he was driving while under the influence of alcohol.

Officer Sarah Williams testified that she was in her cruiser 

and observed Mitchell’s vehicle first, heading northbound on 

70th Street; she identified the driver as Mitchell. Williams tried 

to follow Mitchell, but he was driving erratically, using the 

middle turn lane to pass other vehicles at a high rate of speed. 

Williams testified that the speed limit in that area was 35 miles 

per hour and that Mitchell was traveling 50 miles per hour 

or more. According to Williams, Mitchell’s maneuvers were 

consistent with someone driving while under the influence of 

alcohol. Williams testified that she slowed down, because continuing to follow Mitchell would have been unsafe.

Officer James Quandt testified that he observed Mitchell’s 

vehicle stop at the traffic light at the intersection of 70th and A 

Streets. Quandt identified the driver of the vehicle as Mitchell. 

Quandt testified that he witnessed Mitchell’s vehicle speed, 

change lanes, and run a red light at Wedgewood Drive and 

70th Street. Thereafter, Quandt lost sight of Mitchell’s vehicle, 

but radioed to other officers that Mitchell was northbound and 

might be headed to his home.

Officer Joseph Keiser testified that he witnessed Mitchell 

pull into a driveway at a high rate of speed. Keiser noticed 

the driver’s side tires go up onto the grass, “half missing” 

the driveway, before the vehicle came to a stop. Keiser then 

approached Mitchell’s vehicle and proceeded to conduct a 

search, which revealed five cans of beer, with at least one can 

open, and an open bottle of liquor. Keiser also testified at trial 

that he could smell alcohol on Mitchell. Based on the odor of 

alcohol, Mitchell’s actions, and his manner of driving, Keiser 

opined that Mitchell was under the influence of alcohol.
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STATE v. MITCHELL

Cite as 294 Neb. 832

Quandt later arrived at Mitchell’s home, where he encountered Keiser. Quandt testified that he also observed an odor of 

alcohol on Mitchell. Quandt testified that Mitchell was staggering as he walked and had difficulty balancing, that Mitchell’s 

eyes were bloodshot, and that his speech was slightly slurred. 

Quandt testified that based on these observations and his training and experience in “a thousand or more” DUI investigations, he believed Mitchell was under the influence of alcohol. 

Quandt further opined that Mitchell could not safely operate 

a motor vehicle at that time and that driving behavior like 

Mitchell’s can be a sign that a person is under the influence of 

alcohol. Quandt testified that Mitchell was arrested for driving under revocation. After conducting a DUI investigation 

of the scene, Quandt transported Mitchell to the Lancaster 

County jail.

Quandt testified that while en route to the jail, Mitchell 

repeatedly stated that he should not be under arrest, because 

police did not catch him driving. The district court received, 

and the jury listened to, an audio recording of the trip to the 

jail. Mitchell did not deny or affirmatively state that he had 

been drinking alcohol, and Quandt did not question him about 

the matter. Quandt testified that at the jail, Mitchell refused 

to submit to a chemical test. According to Quandt’s testimony from an earlier hearing outside the presence of the jury, 

Mitchell received Miranda warnings sometime after he refused 

the chemical test, but there was no evidence at trial about 

Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 

S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

During closing statements, the State argued:

Mitchell never says, I’m not drunk. I wasn’t drinking. 

Why are you arresting me for [DUI], I’m not drunk. What 

he says is, “You didn’t catch me driving. You didn’t arrest 

me in my truck.” And later, “You didn’t breathalyze me 

in my car.” Never once does he say he’s not drunk. It’s 

all about where you got me. He never denied that he’s 

drunk . . . .
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STATE v. MITCHELL

Cite as 294 Neb. 832

Mitchell’s counsel objected and moved for a mistrial. The 

court did not specifically rule on Mitchell’s motion for mistrial 

but instructed the jury to disregard the State’s comments about 

what Mitchell did or did not deny.

The jury found Mitchell guilty of DUI with refusal to submit 

to a chemical test and of driving during revocation. Following 

an enhancement hearing concerning Mitchell’s multiple DUI 

convictions, the district court sentenced Mitchell to 5 to 10 

years’ imprisonment and revoked his driving privileges for 

15 years.

Mitchell appealed to the Court of Appeals, assigning, 

among other things, that the district court erred when it 

overruled his motion for mistrial based on the prosecutor’s 

comment during closing argument that Mitchell did not deny 

being intoxicated. The Court of Appeals affirmed the convictions and sentences, determining that Mitchell had not suffered actual prejudice as a result of the trial court’s denial of 

his motion for mistrial. See State v. Mitchell, 23 Neb. App. 

657, 876 N.W.2d 1 (2016).

We granted Mitchell’s petition for further review.

ASSIGNMENT OF ERROR

In his petition for further review, Mitchell assigns that the 

Court of Appeals erred by failing to find that the district court 

should have declared a mistrial because the State violated due 

process and the Nebraska and U.S. Constitutions by inappropriately commenting during closing arguments on Mitchell’s 

pretrial silence.

STANDARD OF REVIEW

[1] The decision whether to grant a motion for mistrial will 

not be disturbed on appeal in the absence of an abuse of discretion. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).

ANALYSIS

At trial, the jury heard evidence that Mitchell made unsolicited postarrest, pre-Miranda statements during the ride to 
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Nebraska Supreme Court Advance Sheets

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STATE v. MITCHELL

Cite as 294 Neb. 832

the jail, in which he repeatedly volunteered that he should not 

be under arrest because police did not catch him driving. The 

instant appeal centers on the prosecutor’s subsequent statements during closing arguments, which merit repetition:

Mitchell never says, I’m not drunk. I wasn’t drinking. 

Why are you arresting me for [DUI], I’m not drunk. What 

he says is, “You didn’t catch me driving. You didn’t arrest 

me in my truck.” And later, “You didn’t breathalyze me 

in my car.” Never once does he say he’s not drunk. It’s 

all about where you got me. He never denied that he’s 

drunk . . . .

The district court did not specifically rule on Mitchell’s motion 

for mistrial but did admonish the jury to disregard the comments of the prosecutor. We interpret this as implicitly overruling the motion for mistrial.

[2] Mitchell assigns that the Court of Appeals erred by 

failing to find that the district court ought to have declared a 

mistrial. A mistrial is properly granted in a criminal case where 

an event occurs during the course of a trial that 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. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). 

The defendant must prove that the alleged error actually prejudiced him or her, rather than creating only the possibility of 

prejudice. State v. Daly, supra.

[3] Mitchell asserts that because he did not testify at trial, 

and subject himself to cross-examination, he did not waive any 

right concerning the use of his postarrest, pre-Miranda silence. 

See Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. 

Ed. 2d 86 (1980) (defendant waives his Fifth Amendment protections when he takes stand and testifies which, in turn, allows 

his prearrest silence to be used for impeachment).

The Court of Appeals, in examining the prosecutor’s closing remarks about Mitchell’s postarrest, pre-Miranda silence, 

relied upon U.S. v. Frazier, 408 F.3d 1102 (8th Cir. 2005). 

In Frazier, during the State’s case in chief, the prosecutor 
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STATE v. MITCHELL

Cite as 294 Neb. 832

questioned the arresting officer about the defendant’s reaction 

to the arrest and about the complete silence of the defendant during the process of arrest. This observation of silence 

occurred after the defendant had been arrested but prior to 

being read his Miranda rights. The Eighth Circuit stated that 

“[a]lthough [the defendant] was under arrest, there was no governmental action at that point inducing his silence,” because 

he had not yet been read his Miranda rights. 408 F.3d at 1111. 

The Frazier court therefore concluded that the government 

could utilize the defendant’s postarrest, pre-Miranda silence as 

substantive evidence of his guilt.

The Court of Appeals found that the principle in Frazier

applied “equally to impeachment use of silence as to the use of 

silence as substantive evidence of a defendant’s guilt” and that 

“[b]ecause his silence occurred pre-Miranda, the prosecutor’s 

comment utilizing Mitchell’s silence as evidence of his guilt 

was not improper.” State v. Mitchell, 23 Neb. App. 657, 670, 

876 N.W.2d 1, 11-12 (2016).

However, Mitchell argues (1) that the Court of Appeals 

incorrectly relied on Frazier, because that court narrowly 

tailored its opinion to the specific facts present in that case, 

and (2) that the decision in Frazier is not consistent with U.S. 

Supreme Court precedent in Doyle v. Ohio, 426 U.S. 610, 96 

S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Wainwright v. Greenfield, 

474 U.S. 284, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986); and 

Jenkins v. Anderson, supra.

Mitchell is partially correct in that the court in Frazier did 

limit its holding to “the facts before” it and further stated, 

“We are speaking in this case only of the defendant’s silence 

during and just after his arrest.” U.S. v. Frazier, 408 F.3d at 

1111. Despite Fraizer’s limited holding, the Court of Appeals 

used it as guidance in evaluating the closing remarks in this 

case and in resolving the ultimate issue it presents: whether 

the comments were overly prejudicial, resulting in an unfair 

trial. See, State v. Dixon, supra; State v. Daly, 278 Neb. 903, 

775 N.W.2d 47 (2009).
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STATE v. MITCHELL

Cite as 294 Neb. 832

In addition, Mitchell cites U.S. v. Moore, 104 F.3d 377 

(D.C. Cir. 1997), where the court found that the prosecutor’s 

closing comments regarding the defendant’s postarrest, preMiranda silence violated his Fifth Amendment right against 

self-incrimination. In Moore, the defendant did not testify at 

trial and the prosecution not only commented on the defendant’s postarrest, pre-Miranda silence in closing but also presented such evidence during its case in chief. As a result, the 

court found that “a prosecutor’s comment on a defendant’s 

post-custodial silence unduly burdens that defendant’s Fifth 

Amendment right to remain silent at trial, as it calls a jury’s 

further attention to the fact that he has not arisen to remove 

whatever taint the pretrial but post-custodial silence may have 

spread.” 104 F.3d at 385. Mitchell also points out that other 

courts have agreed with Moore. See, U.S. v. Hernandez, 948 

F.2d 316 (7th Cir. 1991); U.S. v. Velarde-Gomez, 269 F.3d 1023 

(9th Cir. 2001) (en banc).

A distinguishing factor separating Mitchell’s case from 

Moore is that the Moore court, in discussing a defendant’s 

absolute right to remain silent, recognized that “[w]hile a 

defendant who chooses to volunteer an unsolicited admission 

or statement to police before questioning may be held to have 

waived the protection of that right, the defendant who stands 

silent must be treated as having asserted it.” 104 F.3d at 385. 

Here, Mitchell volunteered statements prior to Miranda warnings being given and those statements were presented to the 

jury. This is not a case where a defendant remained silent at 

all times, which, under Moore, would constitute an assertion of 

the Fifth Amendment right against self-incrimination. In light 

of Mitchell’s unsolicited statements, it is arguable whether 

these facts present a situation where Mitchell’s postarrest, preMiranda silence is at issue.

[4,5] But even assuming that Mitchell had asserted his Fifth 

Amendment rights through his partial inferred silence and 

that, as Mitchell claims, the prosecutor’s comments rose to the 

level of improper conduct during closing argument, it would 
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STATE v. MITCHELL

Cite as 294 Neb. 832

still be necessary to determine whether Mitchell’s right to a 

fair trial was prejudiced. See State v. Dubray, 289 Neb. 208, 

854 N.W.2d 584 (2014). Whether prosecutorial misconduct 

is prejudicial depends largely on the context of the trial as a 

whole. Id. 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. Id.

While this court is concerned about the prosecutor’s comments because they had the potential to mislead the jury, 

we must weigh any prejudicial effect in view of the overall 

circumstances of this case. See id. Here, the comments were 

isolated to closing argument. Further, in this instance, the 

degree to which the prosecutor’s remarks tended to mislead 

is intertwined with the strength of the evidence supporting 

Mitchell’s conviction. The evidence reflects that Mitchell 

illegally drove in the middle lane passing cars at a high rate 

of speed, endangered other drivers, and drove off the roadway. Additionally, three different officers observed Mitchell’s 

driving and each opined that Mitchell showed signs of driving while under the influence of alcohol. Thus, the evidence 

within the State’s case in chief overwhelmingly supported 

Mitchell’s conviction.

[6] Moreover, we observe that Mitchell’s state of intoxication was relevant in closing argument. Mitchell himself 

raised the issue of whether he was intoxicated in opening 

statements when counsel stated, “And while he was driving 

on a license that was revoked, he was not driving under the 

influence.” Still, the prosecutor’s comments that “Mitchell 

never says, I’m not drunk. I wasn’t drinking” were not based 

upon evidence directly adduced during the trial. Arguably, the 

prosecutor based the comments upon a reasonable inference 

from Mitchell’s volunteered statements. When a prosecutor’s 
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STATE v. MITCHELL

Cite as 294 Neb. 832

comments rest on reasonably drawn inferences from the evidence, he or she 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. State v. Dubray, supra.

[7] Additionally, in the instant case, although the district 

court did not specifically rule on Mitchell’s motion for mistrial, it did provide a curative instruction by admonishing the 

jury to disregard the prosecutor’s comments. And error cannot 

ordinarily be predicated on the failure to grant a mistrial if an 

objection or motion to strike the improper material is sustained 

and the jury is admonished to disregard such material. State v. 

Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

After weighing the above factors, we find that although the 

prosecutor’s closing remarks about Mitchell’s postarrest, preMiranda silence are questionable under these facts, they did 

not prejudice his right to a fair trial. As a result, we find no 

abuse of discretion by the district court in implicitly overruling 

Mitchell’s motion for mistrial.

CONCLUSION

For the reasons set forth above, we affirm the decision of the 

Court of Appeals.

Affirmed.