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State of Nebraska, appellee, v. Jose C

Oliveira-Coutinho, appell

___ N.W.2d ___

Filed July 10, 2015. No. S-13-798.

1. Juries: Discrimination: Appeal and Error. An appellate court reviews 

de novo the facial validity of an attorney’s race-neutral explanation for 

using a peremptory challenge as a question of law.

2. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error. 

An appellate court reviews for clear error a trial court’s factual determination regarding whether a prosecutor’s race-neutral explanation is 

persuasive and whether the prosecutor’s use of a peremptory challenge 

was purposefully discriminatory.

3. Juries: Equal Protection: Prosecuting Attorneys. In Batson v. 

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the 

U.S. Supreme Court held that a prosecutor’s privilege to strike individual jurors through peremptory challenges was subject to the commands 

of the Equal Protection Clause.

4. Juries: Prosecuting Attorneys. A prosecutor is ordinarily entitled 

to exercise permitted peremptory challenges for any reason at all, if 

that reason is related to his or her view concerning the outcome of 

the case.

5. Juries: Equal Protection: Discrimination. The Equal Protection Clause 

forbids the prosecutor to challenge potential jurors solely because of 

their race.

6. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining 

whether a prosecutor impermissibly struck a prospective juror based 

on race is a three-step process. First, a defendant must make a prima 

facie showing that the prosecutor exercised a peremptory challenge 

because of race. Second, assuming the defendant made such a showing, the prosecutor must offer a race-neutral basis for striking the juror. 

And third, the trial court must then determine whether the defendant 

has carried his or her burden of proving purposeful discrimination. The 

third step requires the trial court to evaluate the persuasiveness of the 
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justification proffered by the prosecutor. But the ultimate burden of 

persuasion regarding racial motivation rests with, and never shifts from, 

the opponent of the strike.

7. Juries: Discrimination: Prosecuting Attorneys: Moot Question. Once 

a prosecutor has offered a race-neutral explanation for the peremptory 

challenges and the trial court has decided the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had 

made a prima facie showing is moot.

8. Juries: Prosecuting Attorneys: Discrimination: Appeal and Error. 

The initial question whether a prosecutor’s reasons for a peremptory 

challenge were race neutral is a question of law that an appellate court 

reviews de novo. The question is whether the stated reasons, on their 

face, were inherently discriminatory. In making that determination, 

an appellate court does not consider whether the prosecutor’s reasons 

are persuasive.

9. Juries: Prosecuting Attorneys. The U.S. Supreme Court has explained 

that the third step of a Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 

90 L. Ed. 2d 69 (1986), inquiry involves evaluating the prosecutor’s 

credibility. Such credibility determinations lie within the peculiar province of the trial judge and require deference to the trial court.

10. Criminal Law: Trial: Juries: Appeal and Error. Whether a jury is to 

be kept together before submission of the cause in a criminal trial is left 

to the discretion of the trial court.

11. ____: ____: ____: ____. To warrant reversal, denial of a motion to 

sequester the jury before submission of the cause must be shown to have 

prejudiced the defendant.

12. Jurors: Jury Instructions: Presumptions. Jurors are presumed to follow their instructions unless evidence to the contrary is shown.

13. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress evidence based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. Regarding 

historical facts, an appellate court reviews the trial court’s findings for 

clear error. But whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

14. Search and Seizure: Evidence: Trial. Evidence obtained as the direct 

or indirect fruit of an illegal search or seizure, the poisonous tree, is 

inadmissible in a state prosecution and must be excluded.

15. Search and Seizure: Evidence. To determine whether the evidence is a 

fruit of the illegal search or seizure, a court asks whether the evidence 

has been come at by exploitation of the primary illegality or whether 
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it has instead been come at by means sufficiently distinguishable to be 

purged of the primary taint.

16. Evidence. Under the independent source doctrine, the challenged evidence is admissible if it came from a lawful source independent of the 

illegal conduct.

17. Evidence: Constitutional Law. Under the attenuated connection doctrine, the challenged evidence is admissible if the causal connection 

between the constitutional violation and the discovery of the evidence is 

so attenuated as to rid the taint.

18. Evidence: Police Officers and Sheriffs. Under the inevitable discovery doctrine, the challenged evidence is admissible if it inevitably 

would have been discovered by lawful means without reference to the 

police misconduct.

19. Constitutional Law: Due Process. The determination of whether 

the procedures afforded an individual comport with the constitutional 

requirements for procedural due process presents a question of law.

20. Constitutional Law: Appeal and Error. Claimed violations of the 

compulsory process right are reviewed de novo.

21. Constitutional Law: Witnesses: Due Process: Proof. In order to show 

that his or her compulsory process or due process rights have been 

violated as a result of the deportation of a potential witness, a defendant must (1) make an initial showing that the government has acted in 

bad faith and (2) make a plausible showing that the testimony of the 

deported witness would have been both material and favorable to his or 

her defense.

22. Trial: Evidence: Appeal and Error. A trial court’s determination of the 

relevancy and admissibility of evidence must be upheld in the absence 

of abuse of discretion.

23. Trial: Witnesses. Competency of a witness is an issue to be determined 

by the trial court and not by the jury.

24. ____: ____. The credibility and weight of a witness’ testimony are for 

the jury to determine.

25. Expert Witnesses: Appeal and Error. The standard for reviewing the 

admissibility of expert testimony is abuse of discretion.

26. Criminal Law: Constitutional Law: Due Process. Under the Due 

Process Clause of the 14th Amendment and the Compulsory Process 

and Confrontation Clauses of the 6th Amendment, a criminal defendant 

is guaranteed a meaningful opportunity to present a complete defense.

27. Trial: Evidence. Evidence relating to an illustrative experiment is 

admissible if a competent person conducted the experiment, an apparatus of suitable kind and condition was utilized, and the experiment 

was conducted fairly and honestly. It is not essential that conditions 

existing at the time of the experiment be identical with those existing 
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at the time of the occurrence, but the conditions should be essentially 

similar, that is, similar in all those factors necessary to make the comparison a fair and accurate one. The lack of similarity regarding the 

nonessential factors then goes to the weight of the evidence rather than 

to its admissibility.

28. Trial: Photographs. The admission of photographs into evidence rests 

largely within the discretion of the trial court, which must determine 

their relevancy and weigh their probative value against their possible 

prejudicial effect.

29. Homicide: Photographs. In a homicide prosecution, photographs of a 

victim may be received into evidence for purposes of identification, to 

show the condition of the body or the nature and extent of wounds and 

injuries to it, and to establish malice or intent.

30. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial 

court, and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed.

31. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

32. Motions for New Trial: Evidence: Witnesses. A new trial will not ordinarily be granted for newly discovered evidence which, when produced, 

will merely impeach or discredit a witness who testified at trial.

33. Trial: Prosecuting Attorneys: Appeal and Error. When considering 

a claim of prosecutorial misconduct, an appellate court first considers 

whether the prosecutor’s acts constitute misconduct.

34. Trial: Prosecuting Attorneys: Juries. A prosecutor’s conduct that does 

not mislead and unduly influence the jury is not misconduct.

35. Trial: Prosecuting Attorneys: Appeal and Error. If an appellate court 

concludes that a prosecutor’s acts were misconduct, the court must next 

consider whether the misconduct prejudiced the defendant’s right to a 

fair trial.

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

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

infected the trial that the resulting conviction violates due process.

37. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is 

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

38. 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 
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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.

39. Trial: Waiver: Appeal and Error. Failure to make a timely objection 

waives the right to assert prejudicial error on appeal.

40. Criminal Law: Evidence. The State is allowed to present a coherent 

picture of the facts of the crimes charged, and it may generally choose 

its evidence in so doing.

41. Photographs: Rules of Evidence. Neb. Evid. R. 403, Neb. Rev. Stat. 

§ 27-403 (Reissue 2008), does not require a separate purpose for every 

photograph, and it requires a court to prohibit cumulative evidence only 

if it substantially outweighs the probative value of the evidence.

Appeal from the District Court for Douglas County: Thoma

A. Otepka, Judge. Affirme

Todd W. Lancaster, of Nebraska Commission on Public 

Advocacy, and Horacio J. Wheelock, of Horacio Wheelock 

Law Offices, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

Heavican, C.J., Connolly, Stephan, McCormack, MillerLerman, and Cassel, JJ., and

Heavican, C

I. INTRODUCTION

Jose C. Oliveira-Coutinho was charged with and convicted 

of three counts of first degree murder in the deaths of Vanderlei, 

Jaqueline, and Christopher Szczepanik, and also with one 

count of theft by deception over $1,500. The State sought the 

death penalty, and the jury found aggravating circumstances 

in connection with each of the three counts of murder. A 

three-judge panel was appointed for a sentencing determination hearing. Following that hearing, Oliveira-Coutinho was 

sentenced to three life sentences on the murder counts and 20 

years’ imprisonment on the theft by deception count, sentences 

to be served consecutively. He appeals. We affirm.
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II. FACTUAL BACKGROUND

1. Szczepanik/Oliveira-Cou

Relationsh

Vanderlei and Jaqueline moved from Brazil to Florida. 

While in Florida, their son Christopher was born. The family then moved to Omaha, Nebraska, as missionaries for their 

church to renovate an old school building located on South 

16th Street.

At some point, the church became financially unstable and 

Vanderlei became involved in his own renovation and construction projects. He purchased and was renovating a property 

located on Park Avenue in Omaha, and his business, IGIT 

Services Corporation (IGIT), was also hired for a lead stabilization project in Omaha.

Oliveira-Coutinho moved from Brazil to Florida in 2005, 

where he met and worked for Vanderlei. He moved to Omaha 

with the family and resided with them at the South 16th Street 

property. Oliveira-Coutinho led one of Vanderlei’s work crews. 

In early 2009, Oliveira-Coutinho contacted childhood friends 

Valdeir Goncalves-Santos and Elias Lourenco-Batista, who 

lived in Brazil, about working in the United States. Both 

agreed, moved to Omaha to work for Vanderlei in April 2009, 

and lived at the Park Avenue address.

2. Family Disappea

On January 6, 2010, the Szczepaniks’ pastor from Florida 

received a telephone call from a friend of the Szczepaniks who 

was unable to contact the family. Jaqueline’s adult daughter 

also had tried and failed to contact her mother. A member of 

Vanderlei’s work crew reported that he had last seen Vanderlei 

near the end of the workday on December 17, 2009, at the 

Park Avenue address. The pastor then contacted OliveiraCoutinho. Oliveira-Coutinho indicated that he was not concerned because Vanderlei had previously gone somewhere 

without telling him.

After arriving in Omaha on January 8, 2010, the pastor from 

Florida and another church official reported the Szczepaniks’ 
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disappearance to the Omaha Police Department. A wellness 

check was then initiated at the South 16th Street address. 

Oliveira-Coutinho let law enforcement and church officials 

into the building. Located in the parking lot was a white Dodge 

van with in-transit papers dated December 16, 2009, another 

white truck apparently belonging to IGIT, and a dark-colored 

Volvo registered to Vanderlei. A Nissan pickup registered to 

Vanderlei was not in the parking lot.

Once inside the home, law enforcement noted that the living 

quarters looked like someone had been living there, but had 

just gone out, and that there were no signs of a disturbance. 

The next day, Oliveira-Coutinho gave the church officials 

another tour of the South 16th Street property, as well as a tour 

of the Park Avenue property. Oliveira-Coutinho indicated that 

he had moved to the Park Avenue property because the heat did 

not work at the South 16th Street address.

A missing persons investigation was opened on January 

11, 2010. No response was received from Vanderlei’s and 

Jaqueline’s cell phones. E-mails to IGIT were not returned. 

The last day that Christopher had been at school was December 

17, 2009. The last telephone call from either cell phone was 

from Jaqueline to Vanderlei at 8:46 p.m. on December 17. 

Vanderlei’s Nissan truck was found on January 30, 2010, about 

21⁄2 miles from the Park Avenue location and about one-half 

mile from the South 16th Street location. The truck had a tow 

notice from 2 days earlier. A neighbor testified that the truck 

had been parked one afternoon in December by a Hispanic 

male, who said “‘hi’” in English and kept walking.

3. Case Transferred to Homi

On February 1, 2010, the Omaha Police Department’s homicide unit was briefed on the case. The move to the homicide 

unit was due to a bank surveillance video which showed that 

someone other than the Szczepaniks had been using the family’s bank cards in Omaha on December 17, 2009. Search 

warrant applications were prepared on February 1, 2010, and 
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warrants were executed at the South 16th Street and Park 

Avenue addresses that same day.

While executing the warrants at the Park Avenue address, 

officers found items matching those purchased with the family’s bank cards after the family had gone missing, notably 

two space heaters. Clothing and hats similar to those worn 

by the persons seen in the bank surveillance video were also 

seized, including a black hat with stylized white lettering that 

spelled “Fox” and a tan hooded coat. In the same room where 

the black hat was found, law enforcement recovered driving 

documents, blank checks, and deposit slips, all in OliveiraCoutinho’s name, as well as checks written on IGIT’s account 

and mail postmarked December 23, 2009, and addressed to 

Jaqueline, Vanderlei, and IGIT.

In the master bedroom at the South 16th Street address, 

law enforcement found, among other items, a “Thomas the 

Train” bedspread, Jaqueline’s eyeglasses, checks made out to 

IGIT totaling $95,919, checks made out to Vanderlei totaling 

$2,800, cash totaling $36,400, and $10,000 in Menards gift 

checks. In addition to those items, law enforcement noted that 

items at the South 16th Street address had been moved since 

the initial wellness check.

4. Questioning of Oliveira-Couti

Goncalves-Santos

Lourenco-Bati

Prior to exercising the search warrants on February 1, 2010, 

officers made contact with Oliveira-Coutinho, who was standing in the threshold of the South 16th Street property when 

officers arrived. Oliveira-Coutinho was wearing a tan coat, a 

long-sleeved camouflage shirt, and a black hat with white lettering that spelled “DC.” Officers tried to communicate with 

Oliveira-Coutinho, but had difficulty because of a language 

barrier. Eventually, Oliveira-Coutinho was asked to sit in the 

back seat of the police cruiser. While there, he made a telephone call to a person who was able to talk with one of the 

officers over Oliveira-Coutinho’s cell phone and interpret and 
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explain the situation to him. Upon arriving at the scene, officers recognized the hat worn by Oliveira-Coutinho as similar 

to one worn in the bank surveillance video.

Oliveira-Coutinho, Goncalves-Santos, and Lourenco-Batista 

were all questioned on February 1 and into February 2, 2010, 

and again later in February and March. When GoncalvesSantos was taken into custody, he was wearing a white jacket 

with black stripes on the sleeves.

5. Bank Records, Autom

Teller Machine Foota

and Shopping Sp

Bank records showed that Oliveira-Coutinho’s bank balance on December 10, 2009, was $476.96. In approximately 

the 1 month preceding, there had been just two deposits—

for $600 and $363. But between December 21, 2009, and 

January 5, 2010, three deposits totaling $7,000 were made 

into Oliveira-Coutinho’s bank account, all from IGIT’s 

account. Nearly all of that money had been transferred out 

of the account by the end of the subsequent statement cycle, 

much of it through withdrawals made by a service described 

on his statement as “Xoom.” Similar deposits were made 

into the accounts of Goncalves-Santos and Lourenco-Batista, 

again with the payments coming from IGIT. In addition, 14 

automatic teller machine withdrawals were made from the 

IGIT and Szczepanik accounts between December 17, 2009, 

and January 20, 2010. No other unauthorized withdrawals 

occurred after February 1.

Automatic teller machine footage shows individuals in a 

dark-colored car and a white van, similar to the van driven by 

Oliveira-Coutinho, making withdrawals from the Szczepaniks’ 

bank accounts. The first withdrawal was on December 17, 

2009, at 11:59 p.m. Though faces are not discernible because 

the vehicle’s occupants were wearing hats or hoods, one occupant appears to be wearing a long-sleeved camouflage shirt 

or hoodie, and in another, a tan hooded coat. Yet still another 

shows an occupant wearing a black hat with white stylized 
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lettering that spelled “Fox.” According to one witness, OliveiraCoutinho wore such a hat.

The Szczepaniks’ debit cards were used to make various 

purchases, including purchases at a store referred to as either 

“Hat World” or “LIDS.” At that store, a white hat with black 

lettering that spelled “Oklahoma” and a black hat with white 

lettering that spelled “DC” were purchased. On December 31, 

2009, three individuals purchased items at a Wal-Mart store 

in Council Bluffs, Iowa. Those individuals arrived in a darkcolored sedan; one individual was wearing a tan coat with dark 

lining and a black hat with white letters similar to the “DC” 

hat, while another individual was wearing a white coat with 

black stripes on the sleeves.

6. Initial Char

Following law enforcement’s questioning of OliveiraCoutinho and others, all were placed on immigration holds 

by the federal government. Lourenco-Batista was ordered 

deported on April 22, 2010. On July 29, Oliveira-Coutinho, 

Goncalves-Santos, and Lourenco-Batista were charged with 

unauthorized use of a financial transaction device. The charges 

against Goncalves-Santos and Lourenco-Batista were dropped 

on January 11, 2011. On January 28, Goncalves-Santos was 

charged with three counts of first degree murder. A few months 

later, Lourenco-Batista was deported.

Goncalves-Santos’ trial began on August 15, 2011. After 

7 days of evidence, Goncalves-Santos interrupted his trial 

to cooperate with the State and law enforcement. As part of 

this cooperation, Goncalves-Santos informed law enforcement 

that he and Lourenco-Batista killed the Szczepanik family at 

Oliveira-Coutinho’s direction.

On August 25, 2011, pursuant to a plea agreement, 

Goncalves-Santos pled guilty to one count of second degree 

murder for killing Vanderlei. Also pursuant to the agreement, 

in exchange for his plea and truthful testimony in any current 

or future cases related to the murders, the State agreed to recommend a sentence of 20 years’ to 20 years’ imprisonment. 
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With credit for good time and time served, Goncalves-Santos 

could reduce his sentence to 7 years 5 months’ imprisonment, after which he would likely be deported to Brazil. 

As of Oliveira-Coutinho’s trial, Goncalves-Santos had not 

been sentenced.

7. Testimony of Goncalves-

At Oliveira-Coutinho’s trial, Goncalves-Santos testified 

that on December 17, 2009, he and Lourenco-Batista were 

working at the Park Avenue property when Oliveira-Coutinho 

arrived. Goncalves-Santos testified that Oliveira-Coutinho was 

unhappy working for Vanderlei and wanted to “get” him. 

Oliveira-Coutinho tried to persuade Goncalves-Santos and 

Lourenco-Batista to help him kill Vanderlei.

Oliveira-Coutinho gave Lourenco-Batista a baseball bat and 

gave Goncalves-Santos an iron bar and told them to go to the 

basement where Vanderlei was working and kill him. LourencoBatista went into the basement, but did not kill Vanderlei.

Oliveira-Coutinho then drove Goncalves-Santos and 

Lourenco-Batista to the South 16th Street property. The men 

went to Oliveira-Coutinho’s bedroom, where Oliveira-Coutinho 

showed the others his bank balance and complained that he had 

no money. Goncalves-Santos testified that Oliveira-Coutinho 

was upset because Vanderlei had lowered their wages, because 

work was slow in the winter months. Oliveira-Coutinho indicated again that they had to kill Vanderlei and that it had to 

be “‘today.’”

Oliveira-Coutinho, Goncalves-Santos, and Lourenco-Batista 

waited on the staircase for Vanderlei to come home. OliveiraCoutinho handed Goncalves-Santos a box cutter that looked like 

a gun. Vanderlei came home. Lourenco-Batista hit Vanderlei, 

causing him to fall. Vanderlei screamed for Jaqueline and kept 

saying, “‘It’s me, guys.’” Vanderlei sat up, and GoncalvesSantos hit him with the iron bar. Lourenco-Batista then hit 

Vanderlei on the forehead. At that point, Vanderlei was apparently dead.
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Meanwhile, Jaqueline came running to Vanderlei. OliveiraCoutinho grabbed her and punched her in the mouth. He 

then told Lourenco-Batista to get Christopher. Jaqueline and 

Christopher were taken to Oliveira-Coutinho’s bedroom. 

Goncalves-Santos testified that Jaqueline’s legs and hands were 

taped and that “we tied her with a sock.”

Oliveira-Coutinho demanded bank account numbers from 

Jaqueline. She told him the numbers. Oliveira-Coutinho 

retrieved the bank card and returned with the card and a 

box of checks. Oliveira-Coutinho made Jaqueline sign the 

checks. At this point, Oliveira-Coutinho left Lourenco-Batista 

with Jaqueline and Christopher while he and Goncalves-Santos 

went to the bank to withdraw cash. After the trip to the bank, 

Oliveira-Coutinho drove to the Missouri River to look for a 

place to “throw him away and be free of these people.”

After returning to the South 16th Street address, OliveiraCoutinho and Goncalves-Santos found that Lourenco-Batista 

had untaped Jaqueline’s hands. Oliveira-Coutinho said that 

doing so was “‘dangerous. This woman might hit you.’” They 

tied Jaqueline back up, but took the tape off her feet and put 

a pillowcase over her head. Oliveira-Coutinho warned her 

that “‘[i]f you do anything, you know what’s gonna happen 

to Christopher.’”

Goncalves-Santos and Lourenco-Batista then walked 

Jaqueline down the hallway to a staircase, though not the same 

staircase where Vanderlei was killed. Oliveira-Coutinho stayed 

with Christopher. Goncalves-Santos stayed at the top of the 

staircase. Lourenco-Batista tied a rope around Jaqueline’s neck, 

and the other end of the rope was tied to a railing at the top 

of the staircase. Jaqueline begged for her life, but LourencoBatista pushed her down the stairs. According to GoncalvesSantos’ testimony, Jacqueline “rolled over and she hit the 

wall. And then she rolled again and she went down, and she 

stayed with her head down. Her knees were almost touching 

the ground and she was head-down . . . .” Goncalves-Santos 

took the rope off Jaqueline and placed her at the bottom of 
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the stairs. From the bedroom, Oliveira-Coutinho asked, “‘Are 

you done?’”

They repeated the process with Christopher. GoncalvesSantos testified that he could not “stand to look at him, to see 

Christopher moving around.” When it was finished, OliveiraCoutinho again asked, “‘Is it over?’” Goncalves-Santos went 

to Christopher, who was still moving, and laid him next 

to Jaqueline.

While Oliveira-Coutinho looked for money, GoncalvesSantos and Lourenco-Batista wrapped the bodies in plastic 

and sheets and loaded them into Oliveira-Coutinho’s van. 

Oliveira-Coutinho then drove to the Missouri River, where 

Goncalves-Santos and Lourenco-Batista unloaded the bodies. 

While Oliveira-Coutinho drove, Goncalves-Santos cut open 

the stomach of each body, apparently to keep the bodies from 

floating, and tied each body’s legs to iron bars. The bodies 

were then placed in the river, but they continued to float. 

Oliveira-Coutinho was concerned that the bodies would be 

found, so they returned to the South 16th Street address to get 

a knife to cut the rope. Goncalves-Santos cut the iron bars from 

Vanderlei’s and Jaqueline’s bodies, but Christopher’s body had 

disappeared. Goncalves-Santos threw the knife, iron bars, baseball bat, the contents of a bucket of Vanderlei’s blood, and their 

cleaning supplies into the river.

The men returned to the South 16th Street location and 

cleaned more thoroughly. In addition, according to GoncalvesSantos, he and Oliveira-Coutinho parked Vanderlei’s truck on 

a nearby street to make it look like the family had gone on 

vacation. The men then returned to the Park Avenue property 

to sleep.

Goncalves-Santos testified that they wrote checks and cashed 

them at a Wells Fargo Bank and also that Oliveira-Coutinho 

used the Szczepaniks’ bank cards while with Goncalves-Santos 

and Lourenco-Batista. Goncalves-Santos testified that OliveiraCoutinho hid the bank cards and checks in his van or in the 

attic at the Park Avenue property.
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Goncalves-Santos testifed that he told his wife about the 

killings, but denied telling anyone else. He said that he did 

not tell law enforcement the truth at first because he did 

not know whom to trust, and admitted on cross-examination 

that he made inconsistent statements to law enforcement. 

Goncalves-Santos testified that he decided to tell the truth for 

Jaqueline’s daughter’s sake. He also testified that he believed 

he killed the family because he was with Oliveira-Coutinho 

and Lourenco-Batista when everything happened.

In addition to his testimony, Goncalves-Santos led law 

enforcement to the spot where the bodies had been placed 

in the river, though flooding prevented further search at that 

time. In addition, because of Goncalves-Santos’ information, 

Vanderlei’s blood was found at the South 16th Street property 

near a radiator in the entryway to the building. Vanderlei’s 

blood was also found in a mop bucket located in a utility closet 

in the building.

On October 13, 2011, Goncalves-Santos returned with law 

enforcement to the location where the bodies were disposed of. 

Eventually, skeletal remains bundled in plastic and a “Thomas 

the Train” sheet were found. A pathologist testified that DNA 

evidence established the remains as Christopher but that the 

cause of death could not be determined due to the condition 

of the partial skeletal remains. Also recovered was a metal 

grate with a rope attached. Goncalves-Santos testified that the 

rope was the one they used to hang Jaqueline and Christopher. 

No other evidence was recovered, nor were Vanderlei’s or 

Jaqueline’s bodies found.

8. Testimony of Patricia Bar

dos Santos-Olive

Oliveira-Coutinho’s wife, Patricia Barbosa dos SantosOliveira, testified. According to her testimony, OliveiraCoutinho had a 5-year plan, which began in 2005, to earn 

money and then return to his family in Brazil. In addition, 

Patricia testified that Goncalves-Santos and Lourenco-Batista 
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owed Oliveira-Coutinho money upon their arrival in the 

United States.

Patricia testified that Vanderlei had “laid [Oliveira-Coutinho] 

off,” but then rehired him at a lower wage, and that OliveiraCoutinho was angry because he worked hard for “very little 

money.” Oliveira-Coutinho told Patricia that Vanderlei treated 

him “like a slave,” that Oliveira-Coutinho hated Vanderlei, and 

that he was thinking of killing Vanderlei. Patricia told him that 

“only God has the power to give life and . . . to take life” and 

that he could not kill Vanderlei because he could not repent 

from that. Oliveira-Coutinho replied that he would not kill 

Vanderlei because of Christopher. When Patricia later asked if 

Vanderlei and Oliveira-Coutinho’s relationship had improved, 

he said that it had not but that it did not matter, because he 

and “the boys” had something planned. According to Patricia, 

Oliveira-Coutinho referred to Goncalves-Santos and LourencoBatista as “the boys.”

At the end of January or beginning of February 2010, 

Oliveira-Coutinho contacted Patricia in Brazil and requested 

that if anything happened to him she should transfer money 

from his bank accounts to her bank accounts in Brazil. She 

testified that she did so via “Xoom.” She also testified that 

Oliveira-Coutinho never told her that the Szczepanik family 

was missing.

By mid-February 2010, Patricia began almost daily contact 

with Goncalves-Santos’s wife and assisted the Omaha Police 

Department in making contact with her. Patricia testified that 

she assisted law enforcement because “when you’re made 

aware of a crime being committed and you don’t report that 

crime, then I believe that you are just as guilty as the perpetrators of that crime. And I did not want to have that guilt 

on me.”

9. Motion for Advance R

Goncalves-Santos Cross-Exa

As relevant on appeal, Oliveira-Coutinho filed a motion for 

advance ruling seeking to cross-examine Goncalves-Santos 
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about his sexual relations with animals, his killing or harming of animals, his threats to kill his wife, and any other violent or antisocial tendencies or behaviors. In connection with 

this, Oliveira-Coutinho also sought to introduce the testimony 

of Renan Diaz, one of Goncalves-Santos’ cellmates at the 

Douglas County Correctional Center. Oliveira-Coutinho argued 

that this evidence was relevant and went to the competency of 

Goncalves-Santos as a witness under rule 601.1

The district court rejected Oliveira-Coutinho’s motion for 

advance ruling. It reasoned that the evidence Oliveira-Coutinho 

sought to introduce had no bearing on Goncalves-Santos’ competency as a witness and, further, did not bear on GoncalvesSantos’ credibility, because none of the questions which 

Oliveira-Coutinho sought to ask were probative of GoncalvesSantos’ truthfulness or lack thereof.

The district court further concluded that Oliveira-Coutinho 

could not ask Diaz questions related to specific instances 

of Goncalves-Santos’ conduct, because such extrinsic evidence, under rule 608(2),2

 could not be used to attack a witness’ credibility.

The district court next rejected Oliveira-Coutinho’s contention that the evidence which he sought to admit would 

contradict Goncalves-Santos’ presumed testimony that he, 

Goncalves-Santos, was not violent, but that he killed only under 

Oliveira-Coutinho’s orders. The district court found there was 

nothing to suggest that Goncalves-Santos would testify that 

he was not violent; to the contrary, his testimony about committing the murders would tend to support the conclusion that 

Goncalves-Santos was violent. The evidence Oliveira-Coutinho 

sought to introduce, then, would not contradict GoncalvesSantos’ testimony.

Finally, the district court rejected Oliveira-Coutinho’s 

assertions that these questions of Goncalves-Santos would 

1 Neb. Evid. R. 601, Neb. Rev. Stat. § 27-601 (Reissue 2008).

2 Neb. Evid. R. 608(2), Neb. Rev. Stat. § 27-608(2) (Reissue 2008).
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show bias on the part of Goncalves-Santos against OliveiraCoutinho. The district court reasoned that none of the questions which Oliveira-Coutinho sought to ask touched upon the 

relationship between Oliveira-Coutinho and Goncalves-Santos 

or upon Goncalves-Santos’ self-interest.

Oliveira-Coutinho filed a motion to reconsider, alleging 

that cross-examination on the issues sought was “‘reverse 

404(b)’”3 evidence offered to prove Goncalves-Santos’ conscious guilt, as well as for impeachment if Goncalves-Santos 

testified otherwise. The court denied the motion to reconsider, reasoning that the evidence could not show GoncalvesSantos’ conscious guilt where Goncalves-Santos had admitted 

his guilt.

10. Other Pretrial Mot

(a) Motion to Sequester

Prior to trial, Oliveira-Coutinho sought a change of venue 

and to have the jury, once selected, sequestered for the duration 

of the trial due to pretrial publicity. The district court granted 

the motion with regard to sequestering the jury for deliberations but otherwise denied the motion, concluding that the evidence before it showed that while there had been significant 

pretrial publicity, it was not “invidious, inflammatory, misleading, or biased against [Oliveira-Coutinho].”

(b) Family Photograph

Prior to trial, Oliveira-Coutinho sought to have a family 

photograph of the Szczepaniks excluded from evidence as 

prejudicial. The district court denied that motion, agreeing with 

the State that in this case, the photograph was necessary for 

purposes of identification.

(c) Handwriting Expert

Oliveira-Coutinho also objected to the State’s handwriting expert, Charles Eggleston. The district court held a 

3 See, Fed. R. Evid. 404(b); Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)

(Cum. Supp. 2014).
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Daubert/Schafersman hearing regarding the admissibility of Eggleston’s testimony.4

 The district court found that 

Eggleston qualified as an expert and that his testimony satisfied the standards of Daubert/Schafersman and was therefore admissible.

At trial, Eggleston testified that the evidence strongly supported the conclusion that Vanderlei wrote the checks found 

during the execution of the Park Avenue search warrant, but 

that he did not sign the credit card slips. He also testified 

that the evidence very strongly supported the proposition that 

Jaqueline signed the 13 checks processed after December 17, 

2009, and also wrote the numeral and narrative dollar amounts, 

but that she did not write the payee and date entries. Eggleston 

testified that the evidence moderately supported the proposition that one person wrote the payee and date entries on all 

13 checks.

(d) Motion to Dismiss

Prior to trial, Oliveira-Coutinho filed a motion to dismiss, 

alleging that witnesses who would have provided exculpatory evidence were deported, thus violating his due process 

and compulsory process rights under the Fifth and Sixth 

Amendments to the U.S. Constitution and article I of the 

Nebraska Constitution. On appeal, Oliveira-Coutinho is primarily concerned with the testimony of Ricardo GonzalezMendez and of Lourenco-Batista, though at trial, he also 

sought testimony from Diaz.

At a hearing on the motion, evidence was produced to suggest that Oliveira-Coutinho was involved in a romantic relationship with Gonzalez-Mendez at the time of the murders. 

Oliveira-Coutinho claimed that Gonzalez-Mendez could provide him with an alibi.

The district court noted first that two others were allegedly 

with Oliveira-Coutinho and Gonzalez-Mendez on the night 

4 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. 

Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 

Neb. 215, 631 N.W.2d 862 (2001).
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of the murders and that one of those individuals had been 

located but had not confirmed Oliveira-Coutinho’s alibi.

The district court also noted that the time line of events did 

not support Oliveira-Coutinho’s claim that his due process and 

compulsory process rights were violated. Rather, the time line 

shows that Oliveira-Coutinho was first questioned on February 

1, 2010, and was placed on a U.S. Immigration and Customs 

Enforcement (ICE) hold within 24 hours after the interview. 

He had been in custody since that time and had been given 

his Miranda rights5 and interviewed multiple times. Within a 

few hours of asking for an attorney on March 11, OliveiraCoutinho had one.

Meanwhile, Gonzalez-Mendez was ordered removed on 

April 15, 2010, and following a felony conviction for criminal 

impersonation, was deported on October 20. Lourenco-Batista 

was ordered removed from the United States on April 22, 

2010; he was later deported. Despite an international warrant 

for his arrest, Lourenco-Batista remains at large. Meanwhile, 

Oliveira-Coutinho was not charged with the murders until 

September 1, 2011, and did not reveal his alibi defense to 

investigators until later in the fall of 2011.

In sum, the district court denied the motion to dismiss, reasoning that there was a

total absence of evidence in the record that the federal 

government departed from normal deportation procedures 

in the removal of Gonzalez-Mendez or any of the other 

individuals mentioned . . . nor was any evidence offered 

in support of this Motion that these individuals were 

deported by the federal government so that the State of 

Nebraska could gain an unfair tactical advantage over 

[Oliveira-Coutinho] at trial. In fact, there was no evidence at the hearing on this Motion to show that either 

the federal government or the State was aware that these 

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

(1966).
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individuals had the information that [Oliveira-Coutinho] 

recently disclosed they possessed.

(e) Motion to Suppress

Oliveira-Coutinho also filed motions to suppress his 

February 1, 2010, stop, search, and detention, under the Fourth 

Amendment, and to suppress any statements he made during questioning on March 11, under the Fifth Amendment. 

The district court held an evidentiary hearing, but ultimately 

denied both motions. As to the stop, the district court concluded that “[b]ased upon the collective information of the 

police engaged in their common investigation . . . and given 

the totality of circumstances, which included this complete 

language barrier . . . they did satisfy the specific, articulable 

facts requirement for . . . an investigative stop.” Further, the 

district court found that this encounter used the least intrusive 

methods reasonably available.

On appeal, Oliveira-Coutinho does not raise any Fifth 

Amendment claims, but instead argues only that his seizure 

was illegal under the Fourth Amendment and that, as such, 

subsequent statements are inadmissible.

11. Batson Challen

During voir dire, the State asked whether any prospective juror had gotten a ticket or had a family member get a 

ticket; additionally, the State inquired as to whether anyone 

had spent at least one night in jail or had a family member 

who had spent one night in jail. A prospective juror, B.H., 

answered that she had gotten a conviction for driving under 

the influence in 1997. The juror indicated her ability to be 

fair and impartial despite the conviction. The State thanked 

the juror, who then also remembered a 1999 disturbing the 

peace violation, though the juror could not remember many 

details. The juror again indicated that she could remain fair 

and impartial.

The next day, the same juror met privately with the district court and both counsel and indicated that the juror’s 

son had also been convicted of a federal weapons charge and 
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was currently incarcerated and that the son had previously 

been convicted of a state weapons charge and sentenced to 

3 to 6 years’ imprisonment. She indicated that she believed 

her son had been treated fairly and that she could be fair 

and impartial.

The State exercised its fourth peremptory strike to remove 

this juror from the panel. Oliveira-Coutinho made a Batson 

challenge, indicating the State had struck the juror, who was 

an African-American woman, despite the fact that she stated 

she could be fair and impartial.6 The State responded by noting that it was concerned the juror had failed to immediately 

respond to the question with information about her son’s criminal record and also because the juror did not initially remember her disturbing the peace conviction or the background of 

that conviction; this gave the State pause regarding the juror’s 

memory and her ability to serve as a juror. Finally, the State 

noted that the juror did have a son who had been convicted of 

multiple felonies and that in fact, another juror with a similar relationship had been struck using another of the State’s 

peremptory challenges.

The court found that the State had articulated a race-neutral 

explanation for the strike and overruled Oliveira-Coutinho’s 

challenge.

12. Motion for Mistr

During the State’s opening argument, it explained that the 

primary evidence of the events of the murder would be provided by Goncalves-Santos. The State then stated:

Goncalves-Santos will come and tell you the truth about 

that night. And it is brutal and it is horrible. It is frank and 

honest. He will tell you about unsavory, gut-wrenching 

details, but it’s the truth.

The information that he provides is direct. It’s certainly 

unpleasant, horribly so, but it is corroborated by other 

6 See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986).
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testimony and it’s corroborated by independent physical evidence. And you’ll hear about the truth from that 

night from [Goncalves-Santos]. And what you’ll also hear 

about is — it’s the truth. He didn’t have to tell you. See, 

you’ll hear about [Goncalves-Santos’] being in this room 

about 13 months ago, this courtroom. You’ll hear about 

his being on trial for homicide, for murder.

[Goncalves-Santos] is not sophisticated. He’s illiterate. He’s uneducated, and he’d only been — before he 

was arrested, in the United States about six months. So 

in the — the course of just having his trial and the case 

was still being presented against him, the State’s case was 

still ongoing. . . . Goncalves-Santos had those events, 

the true events weighing on his conscience. He couldn’t 

hold it anymore, and during the course of his trial he 

broke down.

He, through his attorney, asked Judge Otepka for — 

for a delay because he wanted to tell the truth. He 

stopped the trial in the middle of the State’s case because 

he wanted to tell the truth, and he delayed the trial, mind 

you, at that point in August of 2011, with no physical 

evidence. It was testimonial at that point, primarily testimonial, but he stopped the trial with no physical evidence 

because he wanted to tell the truth. He delayed a trial 

with no physical evidence at that time. When he potentially could be days away from getting acquitted, going 

back to Brazil even, but he stopped it.

Now, certainly he stopped it, and he was — met with 

law enforcement, who told him you have to tell the 

complete truth with all the details. He did that and law 

enforcement verified it. And the county attorney, our 

office, allowed him to plead guilty to second-degree murder for the killing of Vanderlei Szczepanik, for what he 

did, but also so that he could tell the truth. The proviso 

through all of this was that he must tell the complete and 

utter truth at all times.
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Judge Otepka is the person who — as he described 

at different times along the process, but you’ll hear 

about this through the evidence of the people involved. 

Judge Otepka is the one who metes out sentences to any 

defendant. But as it relates to [Goncalves-Santos, he] 

believes his life is over no matter what happens to him. 

But as part of his plea agreement, the county attorney 

and his attorneys, [Goncalves-Santos’] attorneys, will 

recommend to the judge a 20-year sentence, as long as 

he continues and completes [his testimony] telling the 

truth. Ultimately, Judge Otepka is the one that hands out 

that sentence.

At the conclusion of the State’s opening, a sidebar was held 

at which Oliveira-Coutinho sought a mistrial or, in the alternative, the district court judge’s recusal. Counsel argued that 

counsel for the State

looked at you [Judge Otepka] and said that Judge Otepka 

will sentence Goncalves-Santos when he was talking 

about the deal that the Douglas County Attorney’s Office 

made with Goncalves-Santos. He looked at you and said 

that Judge Otepka will sentence him.

In that context he was stating that, essentially he was 

making you a witness, as if you were vouching for the 

credibility of Goncalves-Santos by giving him the reasonable sentence.

The district court denied both motions.

13. Alibi Evide

At trial, Oliveira-Coutinho attempted to establish a foundation for an alibi. He sought to introduce evidence, through 

cross-examination of Goncalves-Santos, that Oliveira-Coutinho 

and Gonzalez-Mendez were involved in a sexual relationship and that he spent many nights with Gonzalez-Mendez 

at Gonzalez-Mendez’ home. In addition, Oliveira-Coutinho 

sought to introduce evidence that he had looked for GonzalezMendez following the latter’s deportation, but that the search 

was unsuccessful.
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The judge sustained the State’s relevancy objections on 

each. As to the relationship with Oliveira-Coutinho, in an 

offer of proof, Goncalves-Santos testified that he was aware 

that Oliveira-Coutinho spent many evenings with GonzalezMendez, though there was no specific testimony by GoncalvesSantos (or anyone else) that Oliveira-Coutinho spent the evening of the murders with Gonzalez-Mendez. As for the search 

for Gonzalez-Mendez, an investigator testified that it was possible to locate individuals who were in other countries; however, no testimony as to the ultimately futile efforts to locate 

Gonzalez-Mendez was permitted.

14. Reenactment of Mur

At trial, Oliveira-Coutinho sought to introduce evidence, through the testimony of yet another investigator, 

that Jaqueline’s and Christopher’s murders could not have 

occurred as the State theorized. That investigator testified, 

in an offer of proof, to a reenactment that he and a colleague tried at the crime scene. The investigator testified 

that a rope was tied to the colleague’s neck and that the colleague then walked down the stairs, but at no point was ever 

suspended. Oliveira-Coutinho argued that this reenactment 

showed that Goncalves-Santos was lying about how Jaqueline 

and Christopher were killed.

Following the offer of proof, the district court formally 

sustained the State’s foundation objection to the investigator’s testimony and accompanying photographs. The district 

court reasoned that any experiments, in order to be admissible, 

must be done under substantially similar circumstances to the 

original event, but that there was no evidence that this was the 

case here.

15. Testimony of Forensic Anthropolog

Dentist and Admission of Photo

of Skeletal Rema

At trial, the State offered the testimony of Michael Finnegan, 

a forensic anthropologist, and of John Filippi, a forensic dentist. 
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Both examined the skeletal remains found in the Missouri 

River, primarily for identification purposes. Finnegan testified 

that his examination indicated that the remains belonged to a 

person around 8.2 years of age, plus or minus 1 year. He also 

testified that the victim had suffered a perimortem nasal fracture, though he could not tell for certain whether the fracture 

was suffered just prior to or just after death. Filippi testified 

that based on his examination, he placed the age of the remains 

at 7 years, plus or minus 2 years.

In addition to their examinations, according to Filippi, 

Finnegan used a drill belonging to Filippi to remove DNA from 

the humerus bone of the skeletal remains. That DNA sample 

later came back as a match to Christopher.

Oliveira-Coutinho filed a motion to strike the testimony 

of each expert or, in the alternative, a motion for mistrial, 

and also objected to the admission of exhibits Nos. 553, 558, 

566, 569, and 571. Those exhibits were photographs of the 

skeletal remains found in this case, including several closeups of the skull taken from different angles. Counsel argued 

that the photographs were cumulative and unduly prejudicial. 

That objection was overruled based on the State’s contention that the photographs were necessary for the testimony of 

Finnegan and Filippi. The objection to the photographs was 

renewed during Finnegan’s testimony and was overruled. The 

district court denied the motions to strike and the motions 

for mistrial.

16. Motion for New Tr

Following the guilty verdicts, Oliveira-Coutinho filed a 

motion for new trial on the basis of newly discovered evidence. 

That evidence consisted of the affidavit of Kak Thoan. Thoan 

was placed in a holding cell at the Douglas County Courthouse 

with Goncalves-Santos. During their time together, which was 

confirmed by court records, Goncalves-Santos allegedly told 

Thoan that Oliveira-Coutinho was “not a good person,” but 

that Oliveira-Coutinho did not kill the Szczepanik family 

and was not there when Goncalves-Santos killed the family. 
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Thoan also noted in his affidavit that “it was clear to me [that 

Goncalves-Santos] was crazy. He had mental problems. He 

would laugh after every statement he made.”

The district court denied the motion for new trial, reasoning that Thoan’s testimony only went to Goncalves-Santos’ 

credibility and was insufficient to support a new trial. In 

addition, the court noted that Thoan’s statements were not 

wholly inconsistent with Goncalves-Santos’ testimony: 

Goncalves-Santos testified that he and Lourenco-Batista, but 

not Oliveira-Coutinho, actually killed the Szczepanik family 

and that Oliveira-Coutinho was not in the room at the time 

of the murders. The district court also noted that Thoan and 

Goncalves-Santos were speaking English, which was neither’s 

primary language.

III. ASSIGNMENTS OF ERROR

On appeal, Oliveira-Coutinho assigns that the district court 

erred in (1) not granting his Batson challenge, (2) denying his 

request to sequester the jury during the trial, (3) denying his 

motion to suppress, (4) denying his motion to dismiss due to 

the deportation of several witnesses, (5) denying his motion for 

advanced ruling on certain evidentiary issues, (6) denying his 

motion in limine regarding the testimony of the State’s handwriting expert, (7) not admitting alibi evidence, (8) not admitting evidence of the reenactment of the murders by his investigators, (9) admitting a photograph of the Szczepanik family, 

(10) denying his motion for new trial based on newly discovered evidence, (11) denying his motion for mistrial based on 

the State’s opening statements, and (12) not granting a mistrial 

or striking the testimony of the State’s forensic anthropologist and dentist and in admitting photographs of Christopher’s 

skeletal remains for the purposes of that testimony.

IV. ANALYSIS

1. Batson Challen

In his first assignment of error, Oliveira-Coutinho assigns 

that the district court erred in not granting his Batson challenge 
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to the State’s exercise of its peremptory challenge against 

juror B.H.

(a) Standard of Review

[1,2] An appellate court reviews de novo the facial validity 

of an attorney’s race-neutral explanation for using a peremptory challenge as a question of law.7

 An appellate court reviews 

for clear error a trial court’s factual determination regarding 

whether a prosecutor’s race-neutral explanation is persuasive 

and whether the prosecutor’s use of a peremptory challenge 

was purposefully discriminatory.8

(b) Analysis

[3-5] In Batson v. Kentucky,

9

 the U.S. Supreme Court held 

that a prosecutor’s privilege to strike individual jurors through 

peremptory challenges was subject to the commands of the 

Equal Protection Clause. A prosecutor is ordinarily entitled 

to exercise permitted peremptory challenges for any reason 

at all, if that reason is related to his view concerning the outcome of the case.10 But the Equal Protection Clause forbids 

the prosecutor to challenge potential jurors solely because of 

their race.11

[6] Determining whether a prosecutor impermissibly struck 

a prospective juror based on race is a three-step process.12

First, a defendant must make a prima facie showing that the 

prosecutor exercised a peremptory challenge because of race. 

Second, assuming the defendant made such a showing, the 

prosecutor must offer a race-neutral basis for striking the juror. 

And third, the trial court must then determine whether the 

defendant has carried his or her burden of proving purposeful 

7 State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).

8 Id.

9 Batson v. Kentucky, supra note 6.

10 See id.

11 See id.

12 See State v. Nave, supra note 7.
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discrimination.13 The third step requires the trial court to 

evaluate the persuasiveness of the justification proffered by the 

prosecutor.14 But the ultimate burden of persuasion regarding 

racial motivation rests with, and never shifts from, the opponent of the strike.15

Here, the trial court determined that Oliveira-Coutinho had 

presented a prima facie case that the prosecutor had exercised the State’s peremptory challenge because of the juror’s 

race. The State then offered its reasons for the strike, which 

the trial court determined were race neutral and persuasive. 

On this basis, the trial court overruled Oliveira-Coutinho’s 

Batson challenge.

[7] Once a prosecutor has offered a race-neutral explanation 

for the peremptory challenges and the trial court has decided 

the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie 

showing is moot.16 Thus, we must determine only whether the 

prosecutor’s reasons were race neutral and whether the trial 

court’s final determination regarding purposeful discrimination was clearly erroneous.17

[8] The initial question whether a prosecutor’s reasons 

for a peremptory challenge were race neutral is a question 

of law that we review de novo.18 The question is whether 

the stated reasons, on their face, were inherently discriminatory.19 In making that determination, we do not consider 

whether the prosecutor’s reasons are persuasive.20 Indeed, 

13 Id.

14 Id.

15 See id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.
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while the prosecutor’s reasons must be comprehensible, they 

need not be persuasive or even plausible, if they are not inherently discriminatory.21

In support of the exercise of the challenge, the State noted 

it was concerned because juror B.H. had failed to immediately 

respond to the question with information about her son’s criminal record and because juror B.H. did not initially remember 

her disturbing the peace conviction or the background of that 

charge, which gave the State pause regarding juror B.H.’s 

memory and her ability to serve as a juror. Finally, the State 

noted that juror B.H. had a son who had been convicted of 

multiple felonies and that, in fact, another juror with a similar relationship had been struck using another of the State’s 

peremptory challenges.

We conclude that these reasons, on their face, are racially 

neutral. We therefore move on to the third and final step 

of our analysis: whether Oliveira-Coutinho proved that the 

district court clearly erred in finding no purposeful discrimination by the prosecutor. In support of his position, 

Oliveira-Coutinho argues that the State’s reasons were perhaps race neutral, but were unpersuasive, because the explanation ignored juror B.H.’s assertion that she felt her son was 

treated fairly and had received a fair sentence and that what 

had happened to him would not affect her ability to be a fair 

and impartial juror.

[9] The U.S. Supreme Court has explained that the third 

step of a Batson inquiry involves evaluating the prosecutor’s 

credibility and that the best evidence of discriminatory intent 

“‘often will be the demeanor of the attorney who exercise[d] 

the challenge.’”22 Such credibility determinations lie within 

the peculiar province of the trial judge and “‘in the absence 

21 Id.

22 Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 170 L. Ed. 2d 

175 (2008).
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of exceptional circumstances,’” require deference to the trial 

court.23 As we noted in State v. Nave,

24 this deference is 

reflected in our standard of review.

We cannot conclude that this case is the “exceptional” case 

where the trial court’s determination should be reversed. As 

the State noted, another juror was challenged due to a family 

member with a criminal record. Though juror B.H. did indicate 

she could remain fair and impartial, it was permissible for the 

State to remain skeptical, not only because of the parent-child 

relationship, but because juror B.H. did not initially disclose 

the conviction. In addition, the State’s reason for its concern 

about juror B.H.’s memory was appropriate, as the trial was 

anticipated to last 2 weeks and contain hundreds of exhibits 

and many witnesses.

We conclude that the district court did not clearly err 

in overruling Oliveira-Coutinho’s Batson challenge. OliveiraCoutinho’s first assignment of error is without merit.

2. Jury Sequestrat

In his second assignment of error, Oliveira-Coutinho 

assigns that the district court erred in denying his motion to 

sequester the jury during the trial. His motion to sequester 

the jury during deliberations was granted, and the jury was so 

sequestered at that time.

(a) Standard of Review

[10] Whether a jury is to be kept together before submission 

of the cause in a criminal trial is left to the discretion of the 

trial court.25

(b) Analysis

[11] To warrant reversal, denial of a motion to sequester the 

jury before submission of the cause must be shown to have 

23 Id.

24 State v. Nave, supra note 7.

25 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
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prejudiced the defendant.26 No such prejudice was shown in 

this case.

[12] Immediately after they were sworn, the jurors here 

were admonished not to discuss the case among themselves 

or anyone else when court was not in session, and not to read, 

view, or listen to any news reports regarding the case. Jurors 

are presumed to follow their instructions unless evidence to the 

contrary is shown.27

The fact that two prospective jurors admitted during voir 

dire that they ignored the admonishment is not relevant to our 

determination of prejudice for the simple matter that these 

jurors were not chosen for the jury. Moreover, though alleged, 

Oliveira-Coutinho has not shown the nature of the apparent pervasive media attention or that the jurors were actually 

exposed to that publicity.28

The district court did not abuse its discretion in denying Oliveira-Coutinho’s motion to sequester the jury during 

trial. Oliveira-Coutinho’s second assignment of error is without merit.

3. Motion to Suppr

In his third assignment of error, Oliveira-Coutinho assigns 

that the district court erred in denying his motion to suppress. 

Oliveira-Coutinho argues that he was unlawfully seized for 

purposes of the Fourth Amendment on February 1, 2010, as 

officers prepared to execute search warrants on the South 16th

Street and Park Avenue addresses. Oliveira-Coutinho therefore 

contends that “any and all observations, evidence and statements derived from [Oliveira-Coutinho’s] stop, warrantless 

search of his person, and arrest” should be suppressed.29

26 Id.

27 See State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003).

28 See State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).

29 Brief for appellant at 22.
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(a) Standard of Review

[13] In reviewing a trial court’s ruling on a motion to suppress evidence based on a claimed violation of the Fourth 

Amendment, we apply a two-part standard of review.30

Regarding historical facts, we review the trial court’s findings 

for clear error. But whether those facts trigger or violate Fourth 

Amendment protections is a question of law that we review 

independently of the trial court’s determination.31

(b) Analysis

[14,15] Evidence obtained as the direct or indirect “fruit” of 

an illegal search or seizure, “the poisonous tree,” is inadmissible in a state prosecution and must be excluded.32 To determine whether the evidence is a “fruit” of the illegal search 

or seizure, a court asks whether the evidence has been come 

at by exploitation of the primary illegality or whether it has 

instead been come at by means sufficiently distinguishable to 

be purged of the primary taint.33 There are three general exceptions to the exclusionary rule to aid in this analysis.

[16-18] Under the “independent source doctrine,” the challenged evidence is admissible if it came from a lawful source 

independent of the illegal conduct.34 Under the “attenuated 

connection doctrine,” the challenged evidence is admissible 

if the causal connection between the constitutional violation 

and the discovery of the evidence is so attenuated as to rid 

the taint.35 And under the “inevitable discovery doctrine,” the 

challenged evidence is admissible if it inevitably would have 

30 State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).

31 Id.

32 In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

33 See id. (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 

L. Ed. 2d 441 (1963).

34 U.S. v. Reinholz, 245 F.3d 765 (8th Cir. 2001).

35 Id.
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been discovered by lawful means without reference to the 

police misconduct.36

In Oliveira-Coutinho’s brief, other than a general assertion 

that “observations, evidence and statements” should be suppressed, he does not explain what items require suppression.37

It is therefore difficult to analyze this assignment of error. 

Before the district court, Oliveira-Coutinho argued as follows: 

He was initially stopped and seized on February 1, 2010, in 

violation of the Fourth Amendment; he was questioned on that 

day and then placed on an ICE hold; and he eventually reestablished contact with law enforcement and implicated GoncalvesSantos in an interview on March 11.

The State eventually charged Goncalves-Santos with murder, and he was put on trial. During his trial, Goncalves-Santos 

decided to cooperate with the State and testify against OliveiraCoutinho. Oliveira-Coutinho was charged with first degree 

murder, and Goncalves-Santos testified against him. OliveiraCoutinho apparently argues, in essence, that all of GoncalvesSantos’ testimony should be suppressed because he, OliveiraCoutinho, was unlawfully seized over 2 years before.

Assuming without deciding that there was an unlawful 

seizure under the Fourth Amendment, all three exceptions to 

the exclusionary rule have applicability here. To begin, the 

inevitable discovery doctrine is applicable. Law enforcement 

questioned Goncalves-Santos at the Park Avenue address on 

February 1, 2010, when executing the search warrant. In 

interviewing Goncalves-Santos and searching his property, 

they discovered clothing matching that worn by the persons in 

the Wal-Mart surveillance video. Oliveira-Coutinho was also 

connected to this surveillance video. Thus, law enforcement 

would have inevitably discovered Goncalves-Santos’ involvement in this matter to the extent that his involvement was 

not already apparent to law enforcement prior to OliveiraCoutinho’s statements to that effect on March 11.

36 Id.

37 See brief for appellant at 22.
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In addition to the inevitable discovery doctrine, law enforcement had an independent source regarding Goncalves-Santos’ 

involvement—his wife, who ultimately testified at GoncalvesSantos’ trial that Goncalves-Santos admitted his participation 

in the murders.

Finally, the evidence was also sufficiently attenuated as to 

rid itself of any taint from any alleged Fourth Amendment 

violation. Though Oliveira-Coutinho contends he was seized 

on February 1, 2010, he was not initially held by the State on 

any charges related to the Szczepanik family’s disappearance, 

but instead was placed on an ICE hold by the federal government. Between March 6 and 11, Oliveira-Coutinho contacted 

an investigator in this case and spoke to him, against his 

attorney’s advice, regarding Goncalves-Santos’ involvement 

on March 11. Thirty-eight days elapsed between OliveiraCoutinho’s February 1 encounter with law enforcement and the 

March 11 interview regarding Goncalves-Santos. This length 

of time, the fact that Oliveira-Coutinho’s voluntary statement 

led law enforcement to Goncalves-Santos, and the fact that law 

enforcement had other reasons to suspect Goncalves-Santos, 

lead to the conclusion that the causal connection was so attenuated as to remove any taint.

The district court did not err in denying Oliveira-Coutinho’s 

motion to suppress. Oliveira-Coutinho’s third assignment of 

error is without merit.

4. Deportation of Witne

In his fourth assignment of error, Oliveira-Coutinho assigns 

that the district court erred in denying his motion to dismiss. The basis of his motion was the federal government’s 

deportation of several individuals who Oliveira-Coutinho contends could have provided material evidence to his defense. 

Oliveira-Coutinho asserts that his Fifth Amendment due process rights and Sixth Amendment compulsory process rights 

under the U.S. Constitution, and the equivalent protections 

under the Nebraska Constitution, were violated as a result of 

these deportations.
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(a) Standard of Review

[19,20] The determination of whether the procedures 

afforded an individual comport with the constitutional requirements for procedural due process presents a question of law.38

Likewise, claimed violations of the compulsory process right 

are reviewed de novo.39

(b) Analysis

The Fifth Amendment to the U.S. Constitution provides: 

“No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .” Article I, § 3, of the 

Nebraska Constitution provides the same protection. And the 

Sixth Amendment to the U.S. Constitution provides: “In all 

criminal prosecutions, the accused shall enjoy the right . . . to 

have compulsory process for obtaining witnesses in his favor 

. . . .” Similarly, Neb. Const. art. I, § 11, provides that “the 

accused shall have the right . . . to have process to compel the 

attendance of witnesses in his behalf.”

This right is not absolute, however. In U.S. v. ValenzuelaBernal,

40 the U.S. Supreme Court addressed the extent of 

the compulsory process right when the government deports 

an individual that a defendant wishes to call as a witness. 

The Court held that the “mere fact that the Government 

deports [illegal-alien] witnesses is not sufficient to establish a violation of the Compulsory Process Clause of the 

Sixth Amendment or the Due Process Clause of the Fifth 

Amendment.”41 The Court further noted that “[s]anctions may 

be imposed on the Government for deporting witnesses only 

if the criminal defendant makes a plausible showing that the 

testimony of the deported witnesses would have been material 

and favorable to his defense, in ways not merely cumulative 

38 State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).

39 U.S. v. Damra, 621 F.3d 474 (6th Cir. 2010).

40 U.S. v. Valenzuela-Bernal, 458 U.S. 858, 102 S. Ct. 3440, 73 L. Ed. 2d 

1193 (1982).

41 Id., 458 U.S. at 872-73.
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to the testimony of available witnesses,”42 such that there is “a 

reasonable likelihood that the testimony could have affected 

the judgment of the trier of fact.”43

The U.S. Supreme Court later relied upon Valenzuela-Bernal

in its decision in Youngblood v. Arizona.

44 In Youngblood, 

the government intentionally destroyed evidence. Citing to 

Valenzuela-Bernal and other cases, the Court held that the failure of law enforcement to preserve potentially useful evidence 

was not a denial of due process, absent a showing of bad faith 

on the part of the government.

Since the U.S. Supreme Court’s decision in Youngblood, 

several circuit courts of appeal have addressed whether the 

compulsory and due process rights of a defendant were violated where a potential witness was deported. All, save the 

Fifth Circuit, have read Valenzuela-Bernal and Youngblood

together to hold that in order to show a violation of due process 

or compulsory process rights, a defendant must “first make an 

initial showing that the government has acted in bad faith, and, 

having made that showing, must then make some plausible 

showing that the testimony of the deported witness would have 

been both material and favorable to his defense.”45 The Fifth 

Circuit has discussed the issue, but has not yet determined 

whether it would require a showing of bad faith.46

42 Id., 458 U.S. at 873.

43 Id., 458 at 874.

44 Youngblood v. Arizona, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 

(1988).

45 U.S. v. Damra, supra note 39, 621 F.3d at 489-90. See, also, U.S. v. De La 

Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010); U.S. v. Chaparro-Alcantara, 

226 F.3d 616 (7th Cir. 2000); U.S. v. Iribe-Perez, 129 F.3d 1167 (10th 

Cir. 1997); U.S. v. Dring, 930 F.2d 687 (9th Cir. 1991). See, also, State v. 

Estrella, 277 Conn. 458, 893 A.3d 348 (2006).

46 U.S. v. Gonzales, 436 F.3d 560 (5th Cir. 2006). See, also, People v. 

Valencia, 218 Cal. App. 3d 808, 267 Cal. Rptr. 257 (1990) (court did not 

address whether showing of bad faith is required); People v. Holmes, 135 

Ill. 2d 198, 552 N.E.2d 763, 142 Ill. Dec. 172 (1990) (court rejected bad 

faith requirement in case involving unavailable, but not deported, witness).
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How a defendant shows bad faith differs slightly between 

circuits. In the Ninth Circuit, a defendant must show either 

(1) that the government departed from normal deportation 

procedures or (2) that it deported the witnesses to gain an 

unfair tactical advantage.47 In the Seventh Circuit, a defendant 

must show “‘“official animus”’” or a “‘“conscious effort to 

suppress exculpatory evidence.”’”48 Here, the focus is on the 

“Government’s knowledge when . . . it arranged for the departure of the witnesses, not on any of its subsequent conduct.”49

Also relevant, if the government interviews the witness or has 

other information suggesting that he or she could offer exculpatory evidence, the government may not deport him or her 

without first giving defense counsel a chance to interview him 

or her.50

[21] We agree with the circuit courts that have adopted the 

above two-pronged test and conclude that a defendant must 

(1) make an initial showing that the government has acted in 

bad faith and (2) make a plausible showing that the testimony 

of the deported witness would have been both material and 

favorable to his or her defense.

Oliveira-Coutinho cannot meet either prong. He complains 

about the deportation of Gonzalez-Mendez and LourencoBatista. Gonzalez-Mendez, who Oliveira-Coutinho now 

claims could be an alibi witness, was deported in October 

2010. And Lourenco-Batista who, according to GoncalvesSantos, participated in the murders, was deported in early 

2011. But Lourenco-Batista and Oliveira-Coutinho were not 

charged with the murders until September 1, 2011, after 

Goncalves-Santos began cooperating with the State. OliveiraCoutinho did not inform the State of his alibi defense until the 

fall of 2011. Regardless of which test of bad faith might be 

47 U.S. v. Pena-Gutierrez, 222 F.3d 1080 (9th Cir. 2000).

48 U.S. v. Chaparro-Alcantara, supra note 45, 226 F.3d at 624.

49 See id.

50 U.S. v. Leal-Del Carmen, 697 F.3d 964 (9th Cir. 2012).
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applicable, we cannot conclude, based on this time line, that 

these potential witnesses were deported in bad faith.

Oliveira-Coutinho also cannot meet his burden to show 

that the witnesses would have provided material and exculpatory evidence. As to his alibi, Oliveira-Coutinho apparently 

contends that he was with Gonzalez-Mendez and others on 

the evening of the murder. One of those individuals was 

interviewed by Oliveira-Coutinho’s investigators, but did not 

confirm the alibi. In addition, though Gonzalez-Mendez was 

interviewed early in this investigation, he did not provide 

any exculpatory information about Oliveira-Coutinho. As for 

Lourenco-Batista, he was a codefendant and, had he been otherwise available to testify, likely would have invoked his Fifth 

Amendment right to remain silent51 or would have testified 

against Oliveira-Coutinho.

The district court did not err in denying Oliveira-Coutinho’s 

motion to dismiss. Oliveira-Coutinho’s fourth assignment of 

error is without merit.

5. Motion for Advance 

on Evidentiary Is

In his fifth assignment of error, Oliveira-Coutinho assigns 

that the district court erred in not allowing him to crossexamine Goncalves-Santos regarding his competency and 

credibility as a witness, including admissions he made, certain behaviors subsequent to the murders, threats against his 

wife, threats against a cellmate, and other violent behaviors 

such as mistreating or killing animals. In addition to crossexamination, Oliveira-Coutinho sought to call the cellmate, 

Diaz, as a rebuttal witness, should Goncalves-Santos deny the 

accusations on cross-examination.

51 See U.S. v. Iribe-Perez, supra note 45. See, also, U.S. v. Stassi, 544 F.2d 

579 (2d Cir. 1976).
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(a) Standard of Review

[22] A trial court’s determination of the relevancy and 

admissibility of evidence must be upheld in the absence of 

abuse of discretion.52

(b) Analysis

Oliveira-Coutinho argues that his proposed crossexamination was relevant to Goncalves-Santos’ competency 

under rule 601 and to his credibility under rule 607.53 He further argues that such cross-examination was not prohibited by 

limits on extrinsic evidence set forth in rule 608(2) and was 

admissible as “‘reverse 404(b)’” evidence.

(i) Competency

[23] We turn first to Oliveira-Coutinho’s contention that the 

matters upon which he sought to cross-examine GoncalvesSantos were relevant to Goncalves-Santos’ competency. We 

disagree. Rule 601 provides that “[e]very person is competent 

to be a witness except as otherwise provided in these rules.” 

Competency of a witness is an issue to be determined by the 

trial court and not by the jury.54 Yet, Oliveira-Coutinho wished 

to cross-examine Goncalves-Santos in an attempt to show that 

Goncalves-Santos was incompetent to testify. But, in fact, 

the jury could not make such a determination. In addition, 

Oliveira-Coutinho did not assign that the district court erred in 

finding that Goncalves-Santos was competent to testify. There 

is no merit to this argument.

(ii) Credibility

Oliveira-Coutinho contends that the evidence for which he 

sought to cross-examine Goncalves-Santos would be admissible to impeach Goncalves-Santos’ credibility.

[24] Rule 607 states, “The credibility of a witness may be 

attacked by any party, including the party calling him.” Unlike 

52 State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).

53 Neb. Evid. R. 607, Neb. Rev. Stat. § 27-607 (Reissue 2008)

54 See State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997).
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competency, the credibility and weight of a witness’ testimony are for the jury to determine.55 Finally, as relevant, rule 

608(2) explains:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than 

conviction of crime as provided in section 27-609, may 

not be proved by extrinsic evidence. They may, however, 

in the discretion of the court, if probative of truthfulness 

or untruthfulness be inquired into on cross-examination 

of the witness (a) concerning his character for truthfulness or untruthfulness, or (b) concerning the character for truthfulness or untruthfulness of another witness 

as to which character the witness being cross-examined 

has testified.

Though under rule 608(2), specific instances of conduct by 

a witness to attack his or her credibility are not provable by 

extrinsic evidence, Oliveira-Coutinho nevertheless argues that 

this evidence was admissible, because it was directly relevant 

to both “material issues of the case” and Goncalves-Santos’ 

bias “in favor of himself and against [Oliveira-Coutinho],” as 

well as “Goncalves[-Santos’] attempts to threaten, intimidate 

and tamper with witnesses,” which Oliveira-Coutinho refers 

to as “conscious guilt.”56 Oliveira-Coutinho is correct in that 

he argues that specific conduct evidence can be admissible 

insofar as it is directly relevant to bias57 or to the material 

issues of the case.58 But as demonstrated below, the specific conduct he seeks to admit was nevertheless irrelevant 

and inadmissible.

We begin with the alleged admissions made by GoncalvesSantos to Diaz. At trial, Goncalves-Santos testified that he 

had not told anyone except his wife about the murders, denied 

55 Id.

56 Brief for appellant at 27-28, 32.

57 See United States v. Abel, 469 U.S. 45, 105 S. Ct. 465, 83 L. Ed. 2d 450 

(1984).

58 See U.S. v. Calle, 822 F.2d 1016 (11th Cir. 1987).
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that he was unhappy with Vanderlei, and stated that OliveiraCoutinho told him, Goncalves-Santos, to kill the Szczepanik 

family. Because Diaz had been deported and was unavailable to testify, Oliveira-Coutinho was permitted to introduce 

portions of Diaz’ trial testimony from Goncalves-Santos’ 

trial in an effort to impeach Goncalves-Santos’ later testimony at Oliveira-Coutinho’s trial. The introduced testimony 

included Diaz’ statements that Goncalves-Santos had complained Vanderlei had treated him poorly and had not paid him 

well, that Goncalves-Santos said “‘he [Goncalves-Santos] did 

it,’” and that Goncalves-Santos did not tell Diaz that others 

were involved.

Through this testimony, Oliveira-Coutinho was permitted to 

introduce Goncalves-Santos’ admissions to impeach his testimony. For that reason, there is no merit to Oliveira-Coutinho’s 

argument that he be allowed to impeach Goncalves-Santos with 

his admissions to Diaz.

Oliveira-Coutinho also argues that he should have been 

allowed to cross-examine Goncalves-Santos regarding 

Goncalves-Santos’ alleged threats to kill Diaz if Diaz repeated 

Goncalves-Santos’ admissions. Oliveira-Coutinho argues these 

threats are relevant to show Goncalves-Santos felt “conscious 

guilt” over the Szczepaniks’ murders.59

But in his testimony at Oliveira-Coutinho’s trial, GoncalvesSantos admitted his guilt. It was therefore unnecessary to 

introduce these threats, which are specific acts of misconduct 

prohibited by rule 608(2), to show any conscious guilt. The 

district court did not err in not allowing Oliveira-Coutinho to 

cross-examine Goncalves-Santos on this point.

The district court also did not err in not allowing crossexamination regarding threats made by Goncalves-Santos 

against his wife. These threats are not relevant to GoncalvesSantos’ alleged bias against Oliveira-Coutinho, or to any 

material issues of the case as identified by Oliveira-Coutinho 

or otherwise. Nor are they relevant to Goncalves-Santos’ 

59 Brief for appellant at 32.
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conscious guilt because, of course, any conscious guilt is 

irrelevant where Goncalves-Santos has admitted his actual 

guilt.

In addition, Oliveira-Coutinho sought to introduce evidence 

of Goncalves-Santos’ certain “concerning behaviors” while 

incarcerated after being arrested for the Szczepaniks’ murders.60 This evidence has no relevance to any bias on the part 

of Goncalves-Santos, and its introduction would not contradict Goncalves-Santos’ testimony that he killed the family at 

Oliveira-Coutinho’s direction.

Oliveira-Coutinho also sought to introduce evidence showing 

Goncalves-Santos’ violence toward animals. Oliveira-Coutinho 

is apparently arguing that this evidence shows GoncalvesSantos was violent, independent of any direction by OliveiraCoutinho. There is nothing in Goncalves-Santos’ testimony 

suggesting that he had to be persuaded to kill the family or 

that he was ordinarily not a violent person. In fact, GoncalvesSantos’ testimony shows that he was a violent person. This 

evidence is not relevant to show any alleged bias against 

Oliveira-Coutinho.

Finally, Oliveira-Coutinho argues that Diaz’ testimony, 

in which he discussed certain “concerning behaviors” of 

Goncalves-Santos, was admissible under rule 404(2) as 

so-called reverse 404(b) of the Federal Rules of Evidence, 

relevant to show Goncalves-Santos’ consciousness of guilt. 

Rule 404(2) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show 

that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.

Oliveira-Coutinho argues that “[i]f [Diaz’] testimony was 

relevant to proving Goncalves[-Santos’] guilt at his trial, it is 

60 Id. at 27.
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inconceivable that the same evidence was not admissible in 

[Oliveira-Coutinho’s] trial to show third-party guilt . . . .”61

We disagree. At his own trial, Goncalves-Santos had pled 

not guilty and the State was tasked with proving his guilt 

beyond a reasonable doubt. Diaz’ testimony regarding actions 

of Goncalves-Santos that might have shown conscious guilt is 

arguably relevant. But, as noted above, at Oliveira-Coutinho’s 

trial, Goncalves-Santos admitted his guilt. It was unnecessary 

to admit the evidence sought by Oliveira-Coutinho to prove 

conscious guilt of a person who did not deny his guilt.

Finally, to the extent Oliveira-Coutinho argues that 

Goncalves-Santos had an incentive to testify against him in 

order to secure the benefit of his plea deal, we note that 

the jury was informed of the plea deal and the reasons for 

Goncalves-Santos’ cooperation at Oliveira-Coutinho’s trial.

In sum, the specific acts upon which Oliveira-Coutinho 

sought to cross-examine Goncalves-Santos violated the prohibition against such evidence set forth in rule 608(2) and were 

not relevant to show Goncalves-Santos’ bias against OliveiraCoutinho or to rebut the material issues in the case against 

Oliveira-Coutinho. The district court did not err in not allowing 

Oliveira-Coutinho to cross-examine Goncalve-Santos as argued 

above. There is no merit to Oliveira-Coutinho’s fifth assignment of error.

6. Handwriting Ex

In his sixth assignment of error, Oliveira-Coutinho assigns 

that the district court erred in admitting the testimony of 

Eggleston, the State’s handwriting expert. Oliveira-Coutinho 

argues that Eggleston’s testimony does not reach the standards 

set forth under Daubert v. Merrell Dow Pharmaceuticals, 

Inc.62 and Schafersman v. Agland Coop.

63

61 Id. at 32.

62 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 4.

63 Schafersman v. Agland Coop, supra note 4.
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(a) Standard of Review

[25] The standard for reviewing the admissibility of expert 

testimony is abuse of discretion.64

(b) Analysis

In support of his contention that Eggleston’s testimony was 

unreliable and thus inadmissible, Oliveira-Coutinho cites to the 

decision of the U.S. District Court for the District of Nebraska 

in U.S. v. Rutherford.

65 There, the court concluded that the 

“handwriting analysis testimony on unique identification lacks 

both the validity and reliability of other forensic evidence, 

such as fingerprint identification or DNA evidence.”66

Since that decision, several federal circuit courts of appeal 

have addressed the same basic issue. Each court presented 

with the issue has concluded that even subsequent to the 

U.S. Supreme Court’s decision in Daubert and Kuhmo Tire 

Co. v. Carmichael,

67 such handwriting identification evidence 

can be valid and reliable and therefore admissible.68 As one 

federal court has noted, there is “broad discretion and flexibility given to trial judges to determine how and to what 

degree these factors should be used to evaluate the reliability 

of expert testimony [which] dictate[s] a case-by-case review 

rather than a general pronouncement that . . . handwriting 

analysis is reliable.”69

An examination of the record on Oliveira-Coutinho’s 

motion shows that Eggleston, who was accredited in his field, 

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

65 U.S. v. Rutherford, 104 F. Supp. 2d 1190 (D. Neb. 2000).

66 Id. at 1193.

67 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 

2d 238 (1999).

68 U.S. v. Prime, 431 F.3d 1147 (9th Cir. 2005); U.S. v. Crisp, 324 F.3d 

261 (4th Cir. 2003); U.S. v. Mooney, 315 F.3d 54 (1st Cir. 2002); U.S. v. 

Jolivet, 224 F.3d 902 (8th Cir. 2000). See, also, U.S. v. Paul, 175 F.3d 906 

(11th Cir. 1999).

69 U.S. v. Prime, supra note 68 at 1152.
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testified at Oliveira-Coutinho’s Daubert/Schafersman hearing that the theory that no two individuals write identically 

is generally accepted and has been subjected to tests that 

have been printed in peer review journals. Eggleston further 

explained his methodology and acknowledged that the probability statistics in his field were different than that for DNA 

or chemical analysis.

In denying the motion to exclude Eggleston’s testimony, the 

district court noted the above and also noted the development 

of the law since Rutherford had been decided. Given the comprehensive examination of Eggleston and his field, we cannot 

conclude that the district court abused its discretion in allowing Eggleston to testify. Oliveira-Coutinho’s sixth assignment 

of error is without merit.

7. Alibi Evide

In his seventh assignment of error, Oliveira-Coutinho assigns 

that the district court erred in not allowing him to admit evidence of his alibi witness. In particular, Oliveira-Coutinho 

sought to introduce evidence, through cross-examination of 

Goncalves-Santos, that he and Gonzalez-Mendez were involved 

in a relationship and that Oliveira-Coutinho spent many nights 

with Gonzalez-Mendez at Gonzalez-Mendez’ home. In addition, Oliveira-Coutinho sought to introduce evidence that he 

had looked for Gonzalez-Mendez following the latter’s deportation but that the search was unsuccessful.

(a) Standard of Review

A trial court’s determination of the relevancy and admissibility of evidence must be upheld in the absence of abuse 

of discretion.70

(b) Analysis

[26] Under the Due Process Clause of the 14th Amendment 

and the Compulsory Process and Confrontation Clauses of 

the 6th Amendment, a criminal defendant is guaranteed a 

70 State v. Sellers, supra note 52.
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meaningful opportunity to present a complete defense.71

But “‘[t]he accused does not have an unfettered right to 

offer testimony that is incompetent, privileged, or otherwise 

inadmissible under standard rules of evidence.’”72 The evidence sought to be introduced here is irrelevant and therefore inadmissible.

Oliveira-Coutinho argues that admitting evidence of his 

relationship with Gonzalez-Mendez provides foundational support for his alibi. However, Oliveira-Coutinho did not present 

any alibi evidence at trial. Moreover, any evidence regarding 

the nature of his relationship with Gonzalez-Mendez has no 

bearing on Oliveira-Coutinho’s whereabouts on December 17, 

2009. In other words, the fact that Oliveira-Coutinho had a 

relationship with Gonzalez-Mendez or spent many nights with 

him does not show that Oliveira-Coutinho spent the night of 

the murders with Gonzalez-Mendez. Evidence regarding their 

relationship is simply irrelevant.

Also irrelevant are Oliveira-Coutinho’s ultimately futile 

efforts to locate Gonzalez-Mendez. The jury was aware that 

Gonzalez-Mendez had been deported. Oliveira-Coutinho’s 

witness was allowed to testify that it was possible to look 

for a witness who had been deported to Mexico. But the 

exact means undertaken by Oliveira-Coutinho to look for 

Gonzalez-Mendez has no bearing on Oliveira-Coutinho’s 

whereabouts on December 17, 2009, and would accomplish nothing more than inviting the jury to speculate as to 

Gonzalez-Mendez’ testimony had he been called to testify. 

Such speculation would have been prejudicial and not in any 

way probative.

The district court did not abuse its discretion in finding this 

evidence inadmissible. Oliveira-Coutinho’s seventh assignment 

of error is without merit.

71 See State v. Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013), cert. denied

___ U.S. ___, 134 S. Ct. 1899, 188 L. Ed. 2d 930 (2014).

72 Id. at 996, 840 N.W.2d at 519.
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8. Reenactment Evi

In his eighth assignment of error, Oliveira-Coutinho assigns 

that the district court erred in not admitting evidence of a 

reenactment of the murders.

(a) Standard of Review

The standard for reviewing the admissibility of expert testimony is abuse of discretion.73

(b) Analysis

[27] This court has held that evidence relating to an illustrative experiment is admissible if a competent person conducted 

the experiment, an apparatus of suitable kind and condition 

was utilized, and the experiment was conducted fairly and 

honestly.74 It is not essential that conditions existing at the 

time of the experiment be identical with those existing at the 

time of the occurrence, but the conditions should be essentially 

similar, that is, similar in all those factors necessary to make 

the comparison a fair and accurate one.75 The lack of similarity 

regarding the nonessential factors then goes to the weight of 

the evidence rather than to its admissibility.76

Oliveira-Coutinho argues that the experiment was relevant not to recreate the hangings, but to rebut GoncalvesSantos’ version of events. Oliveira-Coutinho sought to 

impeach Goncalves-Santos’ testimony about how the hangings 

occurred, suggesting that his reenactment evidence demonstrated that if the rope had been tied in the manner in which 

Goncalves-Santos testified, the victims would not have been 

suspended. He directs us to U.S. v. Jackson,

77 which holds 

that “where the purpose of the experiment is not to recreate 

73 State v. McClain, supra note 64.

74 Perry Lumber Co. v. Durable Servs., 266 Neb. 517, 667 N.W.2d 194 

(2003).

75 Id.

76 Id.

77 U.S. v. Jackson, 479 F.3d 485, 489 (7th Cir. 2007).
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events but simply to rebut or falsify the opposing party’s 

sweeping hypothesis, the substantial similarity requirement is 

relaxed.” In contrast, the State argues that Oliveira-Coutinho’s 

“experimental evidence was a veiled attempt to recreate the 

events under controlled conditions favorable to him and the 

substantial similarity requirement is not relaxed.”78 Moreover, 

the State argues that even if the requirement is relaxed, it is 

not “eviscerated.”79

Oliveira-Coutinho argues that we should relax the “substantial similarity” requirement, because the purpose of his reenactment is to rebut Goncalves-Santos’ testimony. But even if the 

requirement is relaxed, we agree that the reenactment is not 

sufficiently similar to Goncalves-Santos’ version of events to 

offer even appropriate rebuttal to those events.

First, Goncalves-Santos testified that Jaqueline was pushed 

down the stairs, while the investigator in the reenactment 

walked down the stairs. And while Goncalves-Santos’ testimony could be read to suggest that Christopher was suspended after he was pushed down the stairs, the testimony 

was clear that Jacqueline landed on the floor. Moreover, 

Jaqueline’s height and weight were unknown, as were the 

exact kind of rope used and the exact location of where the 

rope was tied. Finally, the State’s pathologist expert witness 

testified that it was not necessary to be suspended in order to 

be asphyxiated.

The district court did not err in refusing to admit OliveiraCoutinho’s reenactment evidence. Oliveira-Coutinho’s eighth 

assignment of error is without merit.

9. Admission of Family Photog

In his ninth assignment of error, Oliveira-Coutinho assigns 

that the district court erred in admitting a photograph of 

the family. Oliveira-Coutinho contends that its admission was 

more prejudicial than probative.

78 Brief for appellee at 60.

79 Id.
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(a) Standard of Review

[28] The admission of photographs into evidence rests 

largely within the discretion of the trial court, which must 

determine their relevancy and weigh their probative value 

against their possible prejudicial effect.80

(b) Analysis

[29] In a homicide prosecution, photographs of a victim 

may be received into evidence for purposes of identification, 

to show the condition of the body or the nature and extent of 

wounds and injuries to it, and to establish malice or intent.81

We have also noted that a photograph which is admitted at 

trial depicting a victim while he or she was alive is not offered 

for a proper purpose.82

The district court in this case noted that neither Vanderlei’s 

nor Jaqueline’s body was ever found; furthermore, Christopher’s 

remains were not visually identifiable. Under these circumstances, this case is distinguishable from our case law finding 

the admission of such a photograph to be erroneous. Because 

the photograph was helpful in identifying the victims, it was 

not an abuse of discretion to admit it. Oliveira-Coutinho’s 

ninth assignment of error is without merit.

10. Motion for New Tr

In his 10th assignment of error, Oliveira-Coutinho assigns 

that the district court erred in denying his motion for new trial 

on the basis of newly discovered evidence in the form of the 

affidavit from Thoan.

(a) Standard of Review

[30,31] In a criminal case, a motion for new trial is addressed 

to the discretion of the trial court, and unless an abuse of 

80 State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on 

other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).

81 Id.

82 Id.
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discretion is shown, the trial court’s determination will not be 

disturbed.83 An abuse of discretion occurs when a trial court’s 

decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.84

(b) Analysis

Thoan’s statement is discussed in more detail above. 

Generally, Thoan avers that Goncalves-Santos told him that 

Oliveira-Coutinho was not involved in the murder of the 

Szczepanik family.

As an initial matter, Thoan’s affidavit is not wholly inconsistent with Goncalves-Santos’ testimony. As the district court 

noted, Goncalves-Santos testified that Oliveira-Coutinho was 

not in the room when the family was killed. Especially considering that both Thoan and Goncalves-Santos were speaking 

English when it was the first language of neither, the accuracy 

of Thoan’s recitation of any conversation with GoncalvesSantos is questionable.

[32] In addition, at most, Thoan’s affidavit tells a different story from what Goncalves-Santos testified to at trial. We 

have held that a new trial will not ordinarily be granted for 

newly discovered evidence which, when produced, will merely 

impeach or discredit a witness who testified at trial.85 We have 

further noted that to justify a new trial, newly discovered 

evidence must involve something other than the credibility of 

the witness who testified at trial.86 In the end, this was all that 

Thoan’s story did.

The district court did not abuse its discretion in denying 

Oliveira-Coutinho’s motion for new trial. There is no merit to 

Oliveira-Coutinho’s 10th assignment of error.

83 State v. Faust, 269 Neb. 749, 696 N.W.2d 420 (2005).

84 Id.

85 State v. Wycoff, 180 Neb. 799, 146 N.W.2d 69 (1966).

86 State v. Pierce and Wells, 215 Neb. 512, 340 N.W.2d 122 (1983).
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11. Opening State

In his 11th assignment of error, Oliveira-Coutinho assigned 

that the district court erred in denying his motion for mistrial on the basis of the State’s opening statements. OliveiraCoutinho contends that the State vouched for the testimony of 

the State’s primary witness and also that the State suggested 

that the district court was also vouching for Goncalves-Santos 

when the State noted that the district court would eventually 

sentence Goncalves-Santos for his role in the murders.

(a) Standard of Review

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.87

(b) Analysis

[33-35] When considering a claim of prosecutorial misconduct, we first consider whether the prosecutor’s acts constitute 

misconduct.88 A prosecutor’s conduct that does not mislead 

and unduly influence the jury is not misconduct.89 But 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.90

[36-38] Prosecutorial misconduct prejudices a defendant’s 

right to a fair trial when the misconduct so infected the trial 

that the resulting conviction violates due process.91 Whether 

prosecutorial misconduct is prejudicial depends largely on 

the context of the trial as a whole.92 In determining whether 

the conduct prejudiced the defendant’s right to a fair trial, 

87 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).

88 State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

89 Id.

90 Id.

91 Id.

92 Id.
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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.93

[39] We note that Oliveira-Coutinho has likely waived 

any argument that the State erred in directly vouching for 

Goncalves-Santos when it failed to object to those statements 

at the time they were made. Failure to make a timely objection waives the right to assert prejudicial error on appeal.94

However, we conclude that on appeal, Oliveira-Coutinho has 

preserved his argument that the State suggested the district 

court was also vouching for Goncalves-Santos.

We need not determine whether the State’s action amounted 

to misconduct, because even if it did, such misconduct was 

not prejudicial to Oliveira-Coutinho’s right to a fair trial. The 

challenged remarks were made during a portion of the State’s 

opening statements in this case. Such statements were the 

first remarks in what would be an 11-day trial, complete with 

nearly 50 witnesses and hundreds of exhibits.

While the jury was not immediately instructed to disregard 

the prosecutor’s statements, it was eventually instructed specifically as follows:

There has been testimony from . . . Goncalves-Santos, 

a claimed accomplice of [Oliveira-Coutinho]. You should 

closely examine his testimony for any possible motive 

he might have to testify falsely. You should hesitate 

to convict [Oliveira-Coutinho] if you decide that . . . 

Goncalves-Santos testified falsely about an important 

matter and that there is no other evidence to support his 

testimony.

93 Id.

94 State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
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In any event, you should convict [Oliveira-Coutinho] 

only if the evidence satisfies you beyond a reasonable 

doubt of his guilt.

In addition, the jury was instructed by the court that the 

court was “not permitted to comment on the evidence, and I 

have not intentionally done so. If it appears to you that I have 

commented on the evidence, during either the trial or the giving of these instructions, you must disregard such comment 

entirely.” The jury was also instructed that “[s]tatements, arguments, and questions of the lawyers for the State and [OliveiraCoutinho are not evidence].”

The comments of the prosecutor during his opening statements were isolated in the overall context of the trial, and 

the jury was instructed specifically on Goncalves-Santos’ testimony as well as on issues relating to arguments of counsel 

versus evidence presented. Finally, the strength of the evidence overall was such that any alleged misconduct in opening 

statements was not prejudicial to Oliveira-Coutinho’s right to a 

fair trial. There is no merit to Oliveira-Coutinho’s 11th assignment of error.

12. Testimony of Forensic D

and Photographs 

Skeletal Rema

In his 12th and final assignment of error, Oliveira-Coutinho 

assigns that the district court erred when it did not grant his 

motions for mistrial or, in the alternative, his motions to strike 

the testimony of Finnegan, the State’s forensic anthropologist, 

and Filippi, the State’s forensic dentist. Oliveira-Coutinho contends that the testimony of each expert was repetitive, cumulative, and prejudicial and, further, that the State misrepresented 

to the court the actions taken by Filippi during Christopher’s 

autopsy. In addition, Oliveira-Coutinho assigns that the district court erred in admitting exhibits Nos. 553, 558, 566, 569, 

and 571, which were photographs of Christopher’s skeletal 

remains. Oliveira-Coutinho contends that these photographs 

were prejudicial.
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(a) Standard of Review

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.95

The admission of photographs into evidence rests largely 

within the discretion of the trial court, which must determine 

their relevancy and weigh their probative value against their 

possible prejudicial effect.96

(b) Analysis

We turn first to Oliveira-Coutinho’s assertions regarding the 

testimony of the anthropologist and the dentist. He contends 

that these witnesses purportedly testified with respect to identification but, in fact, Christopher’s remains were identified 

through DNA testing and that therefore, the testimony of each 

expert was unnecessary.

We disagree that the district court abused its discretion in 

not granting a mistrial or, in the alternative, striking the testimony of these witnesses. Each witness testified as to the identification of the skeletal remains. Finnegan testified as to the age 

of the person to whom the remains belonged based upon his 

examination of the bones. Filippi testified as to the age of the 

person to whom the remains belonged based upon his examination of the teeth.

Moreover, both testified to the procedures followed to 

extract DNA from the humerus in order to test the DNA for 

identification purposes. While DNA evidence might be the 

most common way to identify remains, such does not make 

any means of additional identification inadmissible. As the 

State pointed out at trial, even DNA evidence is stated in terms 

of probability.

Because Filippi, like Finnegan, testified as to the identification of Christopher’s remains, we cannot conclude the 

State mischaracterized Filippi’s testimony in order to get the 

95 State v. Dixon, supra note 87.

96 State v. Faust, supra note 80.
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challenged photographs admitted. The district court did not 

abuse its discretion in denying Oliveira-Coutinho’s motions to 

strike and for mistrial.

We turn next to Oliveira-Coutinho’s argument regarding the 

photographs of Christopher’s skeletal remains, exhibits Nos. 

553, 558, 566, 569, and 571.

[40,41] As noted earlier, in a homicide prosecution, a court 

may admit into evidence photographs of a victim for identification, to show the condition of the body or the nature and 

extent of wounds and injuries to it, and to establish malice or 

intent.97 The State is allowed to present a coherent picture of 

the facts of the crimes charged, and it may generally choose its 

evidence in so doing.98 Rule 40399 does not require a separate 

purpose for every photograph, and it requires a court to prohibit cumulative evidence only if it substantially outweighs the 

probative value of the evidence.100

First, these photographs were not cumulative. Each was 

used by the expert witnesses in explaining their examinations 

and identification processes. In addition, we have examined 

the photographs and do not find them to be more prejudicial 

than probative.

The district court did not err in admitting the photographs 

and in failing to strike the testimony of the experts or in granting a motion for mistrial. Oliveira-Coutinho’s final assignment 

of error is without merit.

V. CONCLUSION

Oliveira-Coutinho’s convictions and sentences are affirmed.

Affirmed

Wright, J., not participating

97 State v. Dubray, supra note 88; State v. Faust, supra note 80.

98 State v. Dubray, supra note 88.

99 Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).

100 Id.