Date: 02-25-2017

Case Style:

Case Number: S-15-742.

Judge: Stephanie F. Stacy

Court: Nebraska Supreme Court

Plaintiff's Attorney:

Douglas J. Peterson, Attorney General, and Nathan A. Liss

Defendant's Attorney:

Sean M. Conway

Description: On April 14, 2014, 15-year-old Allee H. sent a text message
to her high school classmate Justice Terpstra (Terpstra), asking
if he would sell her marijuana. Terpstra refused, after which
the text messages between Allee and Terpstra became contentious,
culminating in an agreement to meet at a park in Omaha,
Nebraska, to fight. Both Allee and Terpstra recruited others to
accompany them.
Allee’s group was the first to arrive at the park.
Accompanying Allee were Marcus Cooper, Joshua Schmitt,
Lucio Martinez, and Tielor Williams. Everyone in Allee’s
group, except Martinez, smoked marijuana before going to the
park to fight. Allee’s group drove to the park in two vehicles.
Schmitt drove one of the vehicles, in which Allee and Williams
rode as passengers. Martinez drove the other vehicle with
Cooper as a passenger.
When Terpstra arrived at the park, he was accompanied
by his sister, Freedom Terpstra; his cousin, Victoria Terpstra;
and his friends Dennis Brewer, Lester, and two other males.
As soon as Terpstra’s group arrived at the park, they got out
of their vehicles and approached Schmitt’s vehicle. Freedom
was the first to reach Schmitt’s vehicle, and she began hitting
the car and screaming for Allee to get out. Allee stayed inside
Schmitt’s vehicle, as did Schmitt and Williams. At about the
same time, a person from Allee’s group, Cooper, walked over
and stood near the passenger door of Schmitt’s vehicle.
A male from Terpstra’s group then approached the passenger
side of Schmitt’s vehicle, pointed a gun at Cooper, and
told Cooper to empty his pockets. Cooper handed the male
a gold Zippo lighter and saw the male put the lighter into
his pocket. Cooper testified the male who robbed him never
fired his gun. Terpstra identified the male who robbed Cooper
as Brewer.
Several witnesses testified they saw Lester approach the
passenger side of Schmitt’s vehicle and order the front seat
passenger, Williams, to empty his pockets. Williams refused.
Gunshots erupted, and Williams was shot four to five times in
the face and neck. Schmitt was shot in the hand.
After the shooting, everyone in Terpstra’s group ran to
their vehicles and left. Some members of the group returned
to Terpstra’s house. Freedom testified that while they were
gathered there, Lester said, “That motherfucker shouldn’t have
told me no” and then made a shooting sign with his hand.
Victoria testified that when Lester was asked what happened,
he responded, “I didn’t like his tone so I shot him.”
Before Lester left Terpstra’s house, Lester asked Brewer to
trade shirts with him. Brewer agreed, and took the orange shirt
Lester had been wearing. Later that evening, when Freedom
and Brewer were alone, Brewer gave Freedom a gold lighter.
Both the orange shirt and gold lighter were later recovered
by the police at Terpstra’s house. On April 15, 2014, Terpstra
and Freedom went to a motel to “hide from everybody” who
knew about the shooting. They were later apprehended by
U.S. marshals.
After the shooting, Allee’s group drove to the hospital to seek
medical attention for Williams and Schmitt. Schmitt’s injuries
required surgery but were not life threatening. Williams was
pronounced dead. The cause of death was a gunshot wound to
the head. Autopsy reports revealed Williams had been shot at
very close range four times.
On the night of the shooting and into the next day, Omaha
police detectives interviewed a number of people, including
Cooper, Martinez, and Allee. Victoria later provided a written
statement about what happened, and the primary suspects
became Brewer and Lester. On May 8, 2014, Lester was
arrested and eventually charged with first degree murder, first
degree assault, robbery, attempted robbery, and four counts of
use of a deadly weapon to commit a felony.
Terpstra, Freedom, Victoria, Cooper, Schmitt, and Martinez
all testified at trial. The witnesses provided conflicting accounts
of who fired the shots that killed Williams and what the shooter
was wearing.
Terpstra, Freedom, and Victoria each identified Lester as
the person who shot Williams. Schmitt testified he was not
able to see the shooter, because the shots were fired from outside
the passenger side of his vehicle and Schmitt was in the
driver’s seat. Schmitt admitted that 3 days after the shooting,
he was shown a photographic lineup and identified someone
other than Lester as the shooter, but at trial he “back[ed] off”
that identification and testified he never saw the shooter.
Martinez testified that it was a man in a black hoodie pointing
a gun at Cooper who shot Williams. Cooper testified that
a man in a black hoodie was pointing a gun at him when
shots were fired, but Cooper testified the man pointing the
gun at him did not shoot. Cooper testified he did not see
the shooter.
On multiple occasions while testifying, the witnesses contradicted
prior statements they had made to the police or statements
they had made in depositions. Lester’s counsel argued
that because of these contradictions, the witnesses were not
credible. Defense counsel also questioned the thoroughness of
the police investigation, noting that several pieces of evidence,
including the orange shirt and gold lighter, were not tested
for DNA.
The jury returned a verdict of guilty on all eight counts.
After his motion for new trial was denied, Lester was sentenced
to life imprisonment on the murder conviction, imprisonment
of 15 to 15 years for two convictions involving use
of a deadly weapon, and imprisonment of 20 to 20 years for
assault in the first degree. The sentences were ordered to
be served consecutively. No sentences were imposed on the
remaining convictions pursuant to State v. McHenry,1 a case
in which we held the underlying felony offense merges into a
felony murder conviction and cannot be punished separately,
barring a clear indication by the Legislature that independent
punishments were intended.
Lester timely filed this direct appeal.
II. ASSIGNMENTS OF ERROR
Lester assigns, restated and renumbered, that the district
court erred by (1) overruling his Batson challenge to the
State’s peremptory strike of a prospective juror, (2) excluding
testimony that was offered to impeach a witness, and (3)
denying his motion for new trial. In addition, Lester asserts
(4) the evidence presented at trial was insufficient to support
his convictions.
III. STANDARD OF REVIEW
[1] An appellate court reviews de novo the facial validity of
an attorney’s race-neutral explanation for using a peremptory
challenge as a question of law. It reviews for clear error a trial
court’s factual determination regarding whether a prosecutor’s
race-neutral explanation is persuasive and whether the
prosecutor’s use of a peremptory challenge was purposefully
discriminatory.2
[2] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility.3
[3] Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court,
1 State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996).
2 State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
3 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
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an appellate court reviews the admissibility of evidence for an
abuse of discretion.4
[4] The standard of review for the denial of a motion for
new trial is whether the trial court abused its discretion in
denying the motion.5
[5] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination
thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact. The relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.6
IV. ANALYSIS
1. Batson Challenge
After the jurors were seated but before they had been sworn,
Lester’s counsel stated:
At this time I would raise a Batson challenge based upon
the fact that none of the primary jurors in this matter
are African-American or black. There were two on the
panel; they were both stricken by the State. I do recognize
there is an alternate juror that is black but, for
the reasons stated, I would raise a Batson challenge at
this time.
Lester directed his challenge under Batson v. Kentucky7 to
prospective jurors S.M. and P.S., both of whom had been
removed by the State using peremptory strikes. The court
denied the challenge as to both. Lester does not assign error to
4 Id.
5 State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).
6 State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015).
7 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
the court’s ruling with respect to S.M., and we therefore focus
our analysis on P.S.
[6,7] In Batson, the U.S. Supreme Court held that a prosecutor’s
privilege to strike individual jurors through peremptory
challenges is subject to the commands of the Equal Protection
Clause.8 Ordinarily, a prosecutor is entitled to exercise permitted
peremptory challenges for any reason related to the prosecutor’s
view concerning the outcome of the case.9 But the
Equal Protection Clause forbids the use of peremptory challenges
on potential jurors solely because of their race.10 When
a timely objection under Batson is made, a trial court must
inquire into the reasons behind the peremptory strike.11
[8,9] Evaluating whether a prosecutor impermissibly struck
a prospective juror based on race is a three-step process.12
First, the defendant must make a prima facie showing that the
prosecutor exercised a peremptory challenge because of race.13
A defendant satisfies the requirements of the first step by producing
evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred.14
[10,11] Second, if the requisite showing has been made,
the burden shifts to the prosecutor to present a race-neutral
explanation for striking the juror in question.15 In determining
whether the proffered explanation is race neutral, the court
does not consider whether the prosecutor’s reasons are persuasive,
or even plausible.16 It is sufficient if the stated reasons,
8 See State v. Oliveira-Coutinho, supra note 2.
9 See, id.; State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).
10 See id.
11 State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002).
12 See State v. Oliveira-Coutinho, supra note 2.
13 See id.
14 See State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727.
15 See State v. Oliveira-Coutinho, supra note 2.
16 State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
on their face, are not inherently discriminatory.17 The question
of whether the prosecutor’s reasons are race neutral is a question
of law that we review de novo.18
[12,13] The third step of the Batson inquiry requires the
court to determine, “‘in light of the parties’ submissions,’”19
whether the defendant has met the burden of proving purposeful
discrimination.20 This step involves evaluating the persuasiveness
of the 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.21
A trial court’s ultimate determination of whether purposeful
discrimination has been shown frequently involves its evaluation
of the prosecutor’s credibility and its observations of
the juror’s demeanor, and because determinations of credibility
and demeanor lie “‘“peculiarly within a trial judge’s
province,”’”22 we afford deference to these findings absent
exceptional circumstances.23
Here, the State asserted prospective juror P.S. “had some
difficulty with speech and understanding” but suggested the
“bigger concern” was his employment working with “computer
software passcodes,” which the State thought demonstrated “a
heightened mindset that is looking very technically at this type
of case.” The State also noted that during voir dire, P.S. was
the only prospective juror who mentioned that a witness’ memory
could be affected by drugs and alcohol. This concerned the
17 Id.; State v. Nave, supra note 9.
18 See State v. Nave, supra note 9.
19 Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 170 L. Ed. 175
(2008).
20 See State v. Johnson, supra note 16.
21 See State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
22 Snyder v. Louisiana, supra note 19, 552 U.S. at 477.
23 State v. Johnson, supra note 16.
State because several of its eyewitnesses had used marijuana
immediately before the shooting.
After the State articulated its rationale for striking P.S.,
the court asked Lester’s counsel, “Anything else?” Counsel
answered, “No, Your Honor.” The court then found that “the
Batson challenges have been overcome by virtue of the statements
of the prosecutor. There [are] race-neutral reasons for
[the State’s] decisions.” The jury was sworn, and the trial
commenced.
Lester argues the district court erred by accepting the
State’s race-neutral reason for exercising a peremptory strike
to remove prospective juror P.S. After careful consideration of
the principles announced in Batson, including the recent decision
of the U.S. Supreme Court in Foster v. Chatman,24 we
find no clear error in the district court’s ruling.
Here, Lester timely objected to the State’s use of a peremptory
strike to remove P.S., one of only two black prospective
primary jurors. The district court implicitly concluded
Lester had made a prima facie showing under Batson sufficient
to permit the inference that discrimination had occurred,
because it proceeded directly to the second step of the
analysis and asked the State to explain its reasons for striking
P.S.
As noted, the State gave three reasons for striking P.S. Upon
our de novo review of the State’s proffered explanations,25 we
conclude the reasons were not, on their face, inherently discriminatory.
We thus proceed to the third step in the Batson
analysis.
The district court made a factual finding that the Batson
challenge had “been overcome by virtue of the statements of
the prosecutor” and that there were “race-neutral reasons” for
24 Foster v. Chatman, ___ U.S. ___, 136 S. Ct. 1737, 195 L. Ed. 2d 1
(2016).
25 See State v. Oliveira-Coutinho, supra note 2.
the State’s decisions. We review the court’s factual finding in
this regard for clear error.26
(a) Difficulty With Speech
and Understanding
Lester asserts there is nothing in the record to support
the State’s contention that prospective juror P.S. had difficulty
with speech and understanding. The record does indicate
that during voir dire, both the court and the State asked
P.S. to repeat himself, but also shows that other prospective
jurors, including some who served, were also asked to repeat
responses or speak louder. Whether P.S. exhibited difficulty
with speech or understanding during voir dire is difficult to
discern from the written record, but our deferential standard
of review recognizes that the district court had the benefit of
observing the exchanges involving P.S. and was in the best
position to judge whether the prosecutor’s assessment of P.S.’
speech and understanding was credible. And at the time the
State offered this as an explanation for its strike of P.S., Lester
did not challenge the accuracy of the State’s characterization.
Lester, as the appellant, has the responsibility to present a
record that permits appellate review of the issue assigned as
error27 and bears the ultimate burden under Batson to show a
discriminatory purpose.28 On this record, we find no clear error
in the district court’s decision to accept the State’s first reason
for striking P.S.
(b) Heightened Technical Mindset
P.S. worked as a software security coordinator for the
University of Nebraska Medical Center. The State perceived this
work as highly technical and was concerned that a heightened
26 See id.
27 See State v. Lewis, 240 Neb. 642, 483 N.W.2d 742 (1993) (Grant, J.,
concurring; Boslaugh, J., joins).
28 See State v. Thorpe, supra note 21.
technical mindset would not be ideal for its case, particularly
as the police had ordered fingerprint, DNA, and ballistic testing
on some items of evidence, but not others.
On appeal, Lester argues the State’s “‘heightened mindset’”
rationale was pretextual.29 He argues that other, nonblack,
jurors who were permitted to serve on the jury also had technical
jobs. The U.S. Supreme Court explained recently in Foster
v. Chatman that “‘[i]f a prosecutor’s proffered reason for striking
a black panelist applies just as well to an otherwise-similar
non-black [panelist] who is permitted to serve, that is evidence
tending to prove purposeful discrimination.’”30
[14,15] We note that Lester’s argument about the occupations
of other jurors was never articulated to the district court
for its consideration and evaluation. Absent plain error, when
an issue is raised for the first time in an appellate court, it
will be disregarded inasmuch as the trial court cannot commit
error regarding an issue never presented and submitted to it
for disposition.31 Plain error is plainly evident from the record
and of such a nature that to leave it uncorrected would result
in damage to the integrity, reputation, or fairness of the judicial
process.32 Assisted by the postargument supplemental briefing
of the parties, we have carefully reviewed the record for plain
error on this issue and find none.
Among the 12 jurors and two alternates were a camera
company employee, a director of international service and new
product development, a dog walker, a natural habitat manager,
a credit union employee, a furniture rental employee, a retired
postal worker, a family physician, an operation and communications
coordinator for a natural gas company, an employee
at a dance studio, a nursing student, and a physical therapist.
Several impaneled jurors were unemployed. While each impaneled
juror had some form of expertise and several had occupations
which required advanced degrees and attention to detail,
none had employment similar to P.S. On this record, we find no
plain error in the district court’s acceptance of this rationale as
credible and race neutral.
(c) Witness’ Memory Affected
by Drugs and Alcohol
During voir dire, P.S. was asked, “How do you judge the
credibility of a witness [who is] on the stand?” P.S. replied,
“I’m going to look at . . . listen to what they have to say, but
at the same time memory could be affected by a lot of other
things.” When counsel asked, “Like what?” P.S. answered,
“Alcohol, could be drugs, also could be vision. Those things
have an impact on it.”
P.S. was the only prospective juror to specify that when
judging witness credibility, he would look at alcohol and drug
use. The State argues it found this troubling, because several
eyewitnesses had smoked marijuana just before the shooting
and the credibility of those witnesses was a significant component
of the State’s case.
[16] On appeal, Lester points to nothing in the record suggesting
the State’s third rationale for striking P.S. was pretextual.
Instead, he argues that a witness’ alcohol and drug
use is an entirely appropriate consideration when judging
credibility. This argument, while correct, misses the point.
While alcohol and drug use are indeed appropriate considerations
when weighing witness credibility, prosecutors are free
to exercise peremptory strikes for any reason related to their
views concerning the outcome of the case,33 including the
possibility that a particular juror may be likely to weigh credibility
in a way the prosecutor deems unfavorable, so long as
the peremptory strike is not used to remove a juror based on
race.34 While the Constitution forbids striking even a single
prospective juror for a discriminatory purpose,35 the inquiry
under the third step of Batson does not require considering
the wisdom or efficacy of a peremptory strike, but instead
requires the court to determine, in light of the parties’ submissions,
whether the defendant has carried the burden of proving
the strike was the result of purposeful discrimination.36
On this record, we find no clear error in the district court’s
acceptance of the State’s race-neutral reasons for striking P.S.
We reject Lester’s first assignment of error.
2. Impeachment Evidenc e
Lester assigns that the district court erred in sustaining the
State’s objection to evidence he wanted to offer to impeach
one of the State’s witnesses. Some additional factual background
is necessary to understand this assignment.
Terpstra was one of the witnesses who identified Lester
as the shooter. During Terpstra’s testimony, he acknowledged
that shortly before the fight at the park, he sent Jasyln C. a
Facebook message that said, “I wouldn’t fight a bitch but I’d
shoot a bitch.” Terpstra admitted this message was a reference
to Allee, and he admitted deleting this message after the
shooting of Williams. Terpstra testified he sent this message to
portray himself as a “bad-ass,” but he denied having a gun with
him the night of the fight. He further testified that he had never
possessed a gun before the date of the shooting.
Lester called Jaslyn as a witness. Jaslyn testified she was
not present during the fight at the park, but she had communicated
with Terpstra via Facebook messenger both before and
after the fight. She testified she was worried, based on those
messages, that Terpstra would bring a gun to the park. She
tried to convince Terpstra not to do so, asking him several
times “not to bring a gun up to [the] [p]ark” on the day of
the shooting.
In addition to this testimony, Lester wanted to elicit testimony
from Jaslyn that while at school 2 months before the
shooting, she overheard Terpstra telling a classmate that he
“had a gun.” Lester claimed he wanted to offer this evidence
both to impeach Terpstra’s testimony that he had never possessed
a gun and to give weight to Lester’s theory that someone
else fired the shots that killed Williams. The State objected
to this testimony. The district court sustained the objection,
ruling that Jaslyn’s testimony was (1) hearsay, (2) improper
impeachment, and (3) related to an event too remote in time
to be admissible, as the alleged statement occurred 2 months
before the shooting.
On appeal, Lester argues that Jaslyn’s testimony was not
hearsay and was admissible as a specific instance of prior
conduct under Neb. Rev. Stat. § 27-608(2) (Reissue 2016)
for the purpose of attacking Lester’s credibility. The State
argues that § 27-608 is the wrong framework and suggests
that because Jaslyn’s testimony refers to Terpstra’s prior statement
rather than his prior conduct, its admissibility is governed
by Neb. Rev. Stat. § 27-613(2) (Reissue 2016), which
excludes extrinsic evidence of prior inconsistent statements
unless the witness is given an opportunity to “explain or
deny” the statement.
[17-19] It is unnecessary to analyze the parties’ evidentiary
arguments, because the exclusion of Jaslyn’s testimony, even
if found to be erroneous, was undoubtedly harmless. An error
in admitting or excluding evidence in a criminal trial, whether
of constitutional magnitude or otherwise, is prejudicial unless
the error was harmless beyond a reasonable doubt.37 Harmless
error review looks to the basis on which the jury actually
rested its verdict; the inquiry is not whether in a trial that
37 State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
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occurred without the error, a guilty verdict would surely have
been rendered, but whether the actual guilty verdict rendered
was surely unattributable to the error.38 Where the evidence is
cumulative and there is other competent evidence to support
the conviction, the improper admission or exclusion of evidence
is harmless beyond a reasonable doubt.39
The record shows that Terpstra’s testimony denying he
possessed a gun was impeached by other evidence, such that
Jaslyn’s testimony about overhearing Terpstra claim to have
a gun 2 months before the shooting would have been merely
cumulative. Terpstra admitted that Jaslyn asked him not to
bring a gun to the fight at the park and admitted that he sent
Jaslyn a Facebook message stating, “I wouldn’t fight a bitch
but I’d shoot a bitch.” He admitted this message referred
to Allee, and he admitted to deleting this message after the
shooting of Williams. Jaslyn testified she was worried Terpstra
would bring a gun to the fight at the park, and she tried to
convince him not to. She also testified that before the fight,
she told Allee of her concern that Terpstra would bring a gun
to the fight. All of this evidence was heard by the jury and
tended to undermine the credibility of Terpstra’s testimony
that he did not possess a gun before the fight. We conclude
that Jaslyn’s omitted testimony—that she overheard Terpstra
say he had a gun 2 months before the shooting—was merely
cumulative of this other evidence. As such, the exclusion of
that testimony, if error at all, was harmless. We reject Lester’s
second assignment of error.
3. Motion for New Trial
[20] After the jury returned its verdict, Lester filed a motion
for new trial, which the district court denied. Lester now
contends the motion should have been granted based on two
38 Id.
39 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v.
Kinser, 259 Neb. 251, 609 N.W.2d 322 (2000).
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grounds: prosecutorial misconduct and newly discovered evidence.
In addressing his argument, we are mindful that a trial
judge is accorded significant discretion in granting or denying
a motion for new trial, because the trial judge sees the witnesses,
hears the testimony, and has a special perspective on
the relationship between the evidence and the verdict.40
(a) Prosecutorial Misconduct and
Improper Burden Shifting
During cross-examination, Lester asked a detective whether
DNA was collected on certain items of evidence acquired during
the investigation and the detective admitted it was not. The
questions generally attempted to discredit the police investigation.
On redirect examination, the State asked the detective to
explain who decides to test certain items for DNA and why
some items are not tested. In this context, the State asked the
detective whether “[d]efense attorneys have the right to make
the request to have [an item of evidence] tested?” The detective
answered that defense attorneys can request testing, and
the redirect proceeded without objection.
During closing arguments, the State discussed how challenging
it can be to get usable fingerprints from various items
of evidence. The prosecutor referenced the testimony of the
detective, stating:
And why didn’t we do DNA [analysis on certain items of
evidence]? Why didn’t we do fingerprints? . . .
. . . It isn’t the police that has the DNA lab. It’s a separate
entity at the University of Nebraska Medical Center.
[The defense] ha[s] just as much right to get that property
and have it tested as everybody else in this case.
Lester did not object when this statement was made. But at
the conclusion of the State’s closing argument, Lester moved
for a mistrial. He argued this statement was prosecutorial
misconduct, because it implied Lester had a duty to order
40 State v. Oldson, supra note 5.
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testing and thus improperly shifted the burden of proof to the
defense. The trial court denied the motion, noting Lester failed
to object during the detective’s testimony at trial and finding
the statement did not suggest Lester had the burden of proof to
elicit exculpatory evidence.
[21,22] Even if the prosecutor’s statement during closing
constituted prosecutorial misconduct, an issue we need not
decide, we conclude the trial court did not err in refusing
to grant a mistrial. Whether to grant a motion for mistrial
is within the trial court’s discretion, and this court will not
disturb its ruling unless the court abused its discretion.41 A
mistrial is properly granted in a criminal case where an event
occurs during the course of trial which is of such a nature that
its damaging effect cannot be removed by proper admonition
or instruction to the jury and thus prevents a fair trial.42
[23,24] Under the Due Process Clause of the 14th
Amendment to the U.S. Constitution and under the Nebraska
Constitution, in a criminal prosecution, the State must prove
every element of an offense beyond a reasonable doubt and
may not shift the burden of proof to the defendant by presuming
that element upon proof of the other elements of
the offense.43 Because the burden of proof always remains
with the State, it cannot comment on a defendant’s failure to
produce evidence to refute an element of the crime, because
doing so could erroneously lead the jury to believe that the
defendant carried the burden of introducing evidence.44 The
exception to this rule is when the defendant voluntarily
assumes some burden of proof by asserting the defenses of
alibi, of self-defense, and of others, relying on facts that could
41 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
42 Id.
43 Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281
(1977); State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016).
44 See State v. Rocha, ante p. 716, ___ N.W.2d ___ (2017).
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be elicited only from a witness who is not equally available
to the State.45
We recently decided State v. Rocha,46 a case in which the
State sought to elicit testimony that the defendant had not
requested DNA testing on certain evidence. Rocha was arrested
during a police stop after the police found a marijuana-
like
residue in his pocket and a methamphetamine-like substance
and drug paraphernalia in his vehicle. At trial, the arresting
police officer conceded he did not request any fingerprint or
DNA testing of the items found in the vehicle. During redirect,
the State noted the defendant had not independently tested the
evidence to show his fingerprints and DNA were not present.
The defendant immediately objected that the State was
improperly shifting the burden of proof to him and moved for
a mistrial. The motion for mistrial was denied, but the court
included the following jury instruction with regard to the burden
of proof:
“There was testimony at trial that [the defendant] never
requested any scientific testing of evidence. You must disregard
that testimony in its entirety. [The defendant] has
pleaded not guilty and is presumed to be innocent. The
State’s burden to prove each element of a crime charged
never shifts to a defendant.”47
[25] On appeal, we rejected the State’s argument that the
defendant “opened the door” to its questions about Rocha’s
failure to conduct his own DNA and fingerprint testing. We
explained that while a defendant may invite the State to
explain why it chose not to submit certain items for testing, a
defendant
in a criminal case can never “open the door” to shift
the burden of proof.48 In other words, a defendant is entitled
to inquire about weaknesses in the State’s case, but this does
45 Id.
46 Id.
47 Id. at 727, ___ N.W.2d at ___.
48 State v. Rocha, supra note 44.
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not open the door for the State to point out that the defendant
has not proved his or her innocence.49
[26] We held in Rocha that the district court did not abuse
its discretion in denying the motion for mistrial. We reasoned
the court instructed the jury to disregard the testimony in its
entirety and made clear to the jury that the defendant “‘has
pleaded not guilty and is presumed to be innocent’” and that
“‘[t]he State’s burden to prove each element of a crime charged
never shifts to a defendant.’”50 Absent evidence to the contrary,
it is presumed that a jury followed the instructions given in
arriving at its verdict.51 Thus, under our abuse of discretion
standard of review, we concluded that the questioning and
testimony, in light of the jury instructions, did not deprive the
defendant of a fair trial.52
There are factual and procedural differences between the
present case and Rocha. In this case, Lester did not object to
the detective’s testimony during trial nor did he object during
the State’s closing argument when reference was made to
Lester’s ability to independently test the evidence. Instead, as
we discuss later, Lester’s counsel addressed the State’s remarks
in his own closing argument, then moved for a mistrial after
closing arguments were concluded. Lester did not request a
curative instruction, and the court did not give one.
However, here, as in Rocha, the jury was properly instructed:
“The burden of proof is always on the State to prove beyond
a reasonable doubt all of the material elements of the crime
charged and this burden never shifts.” The jury was also
instructed: “Statements, arguments, and questions of the lawyers
for the State and [Lester]” are not evidence. The jury
was repeatedly reminded of these standards during trial by the
49 Id.
50 Id. at 758-59, ___ N.W.2d at ___.
51 State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).
52 State v. Rocha, supra note 44.
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State, the defense, and the court. Furthermore, during his closing
argument, Lester’s counsel stated:
It is not [Lester’s] job to test evidence that is booked into
state property or to do something with a piece of evidence
that’s regularly being used by law enforcement and sent
over to a DNA laboratory. . . . Do not think that in any
way it is our burden to do that. It is the State’s.
In this case, the jury was instructed multiple times by the
court, and reminded by counsel, that the State had the burden
to prove every element of the crime charged. Absent evidence
to the contrary, it is presumed that a jury followed the instructions
given in arriving at its verdict.53 Under our abuse of
discretion standard of review, we conclude on this record that
the State’s brief comment during closing argument did not
deprive Lester of a fair trial.
(b) Newly Discovered Evidence
Lester claims that 2 days after the jury returned its verdict
in this case, Brewer posted a comment on Facebook. The
post, without edits, reads as follows: “If they identified me
as the shooter then why tf ain’t ma brother sittin here next to
me? The system corrupt, send ma fucn brother home man . . .
#ReadyDaTruth.”
Lester contends that in this posting, “Brewer is acknowledging
his potential involvement as the shooter . . . and exculpating
[Lester].” Lester characterizes the Facebook post as newly
discovered evidence.
The district court found Brewer’s Facebook post was
“ambiguous at best” and did not constitute newly discovered
evidence for purposes of a new trial. We agree.
[27,28] Newly discovered evidence must actually be newly
discovered, and it may not be evidence which could have been
discovered and produced at trial with reasonable diligence.54
53 State v. McSwine, supra note 51.
54 State v. Atwater, 245 Neb. 746, 515 N.W.2d 431 (1994), disapproved on
other grounds, State v. Lykens, 271 Neb. 240, 710 N.W.2d 844 (2006).
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A criminal defendant who seeks a new trial on the basis of
newly discovered evidence must show that if the evidence
had been admitted at the former trial, it would probably have
produced a substantially different result.55
The Facebook post was not newly discovered evidence for
at least two reasons. First, it was not evidence that could not
have been discovered and produced at trial. Rather, it was
a public comment made in response to the jury’s verdict.
Brewer’s post merely expresses a belief that at some point
during the investigation, somebody identified Brewer as the
shooter. Second, the comment is ambiguous at best as to
Lester’s guilt or innocence and does not amount to exculpatory
evidence. The post does not contain any admission or suggestion
of Brewer’s guilt, but merely expresses dissatisfaction
with the jury’s verdict of guilt.
We find no abuse of discretion in denying the motion for
new trial. Lester’s third assignment of error lacks merit.
4. Sufficienc y of Evidenc e
Finally, Lester claims the evidence at trial was insufficient
to support his convictions. Lester does not point to a specific
element of an offense that was lacking in evidentiary support;
rather, he argues there was insufficient evidence to convict
him, because the State’s witnesses contradicted one another
and were biased. Further, Lester claims the State’s investigation
was inadequate. Lester made these same arguments to
the jury.
In reviewing a sufficiency of the evidence claim, whether
the evidence is direct, circumstantial, or a combination
thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact.56 The relevant question for an appellate court
55 State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).
56 State v. Newman, supra note 6; State v. Hale, 290 Neb. 70, 858 N.W.2d
543 (2015).
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is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.57
After carefully reviewing the record, we find there was sufficient
evidence to support Lester’s convictions. We acknowledge
that there were some inconsistencies in witness testimony;
however, an appellate court does not resolve conflicts in
the evidence or pass on the credibility of witnesses. Viewed in
the light most favorable to the State, the record contains sufficient
evidence, if believed, to support every element of the
crimes charged. Lester’s fourth assignment is meritless.

Outcome: