State of Nebraska v. Eric L. Ramos

Lincoln, NE - Criminal defense attorney represented Eric L. Ramos with appealing the order of the district court for Johnson County, which denied his plea in bar following a mistrial.

On October 19, 2017, the State filed an information charging Ramos with first degree murder, a Class I or IA felony;

use of a weapon to commit a felony, a Class II felony; assault

in the first degree, a Class II felony; use of a weapon to - 513 -

Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. RAMOS

Cite as 29 Neb. App. 511

commit a felony, a Class II felony; and tampering or destruction of evidence, a Class IV felony. In addition, the State

alleged that Ramos was a habitual criminal. Subsequently, the

State amended the information by dismissing the charges of

assault in the first degree and the corresponding count of use

of a weapon to commit a felony.

The charges alleged in the information stem from an incident which occurred at the Tecumseh State Correctional

Institution (TSCI) on March 2, 2017. On that date, Ramos

was an inmate lodged in TSCI's housing unit 2. Specifically,

Ramos was housed in unit 2B and was assigned to cell 2B15.

On March 2, when the inmates assigned to units 2A and 2B

returned from lunch, they discovered that correctional officers

had initiated a search of their cells, discovered a large quantity

of homemade alcohol, and confiscated that alcohol. Some of

the inmates in units 2A and 2B were observed using towels

and clothing to cover their faces and were gathering in large

groups. In addition, the inmates propped open the doors to the

outdoor area (commonly referred to as the "2A/B miniyard”)

shared by units 2A and 2B, so as to give the inmates unfettered

access to both units. The inmates ignored orders to return to

their assigned cells, and correctional officers ultimately left

the units in fear for their safety. Inmates in units 2A and 2B

destroyed property in each of the units and set multiple fires.

They also successfully covered a few of the cameras so that

correctional officers could not see everything that was occurring in the units.

During this incident, Michael Galindo, an inmate who was

housed in unit 2A, was repeatedly attacked by other inmates.

Initially, he was assaulted in the 2A/B miniyard. He retreated

to the common area of unit 2A in an attempt to escape his

attackers. Four inmates followed Galindo into unit 2A and

stabbed him over 100 times while he lay on the floor. One such

inmate actually returned to Galindo after the other attackers

had dispersed. This inmate again repeatedly stabbed Galindo.

Once left alone, Galindo was able to get up and retreat to - 514 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

cell 2A15, where he locked himself inside. Inmates located

Galindo inside cell 2A15. One inmate retrieved a heavy piece

of machinery from a broken icemaker. He broke the window in

the door of cell 2A15 and threw a towel which was on fire into

the cell. Galindo was later found deceased inside cell 2A15 by

correctional officers. His cause of death was smoke inhalation

that had been exacerbated by the numerous injuries incurred

from the stabbing.

Based on its analysis of video evidence, the State maintained

that Ramos participated in the initial stabbing of Galindo.

Additionally, the State intended to identify Ramos as the

inmate who returned to stab Galindo additional times and who

broke the window in cell 2A15 and started a fire inside that

cell. Ramos disputed the State's identification of him as a participant in the assault and murder of Galindo. Ramos refused

to waive his right to a speedy trial. As such, trial was to begin

in late July 2018.

Discovery Issues

Prior to Trial.

In January 2018, the district court ordered the State to provide "statutory discovery” to Ramos on or before February 21.

The court later amended the discovery order to add that the

State was to "make available to [Ramos] any and all evidence

requested in the motion that is in the possession of the State;

that . . . is material to [Ramos'] defense; and/or that the [S]tate

intends to introduce as evidence during the trial.” The court

indicated that the State was granted reciprocal discovery, which

was to be received at least 30 days prior to trial.

On February 21, 2018, the State filed a motion to extend

discovery. In the motion, the State indicated that it had previously provided "significant discovery” to Ramos, but that the

discovery in the case was "extremely voluminous.” The State

requested an additional 30 days to finish providing Ramos

with discovery. In conjunction with the State's motion, it filed

a certificate of discovery compliance, indicating that it had

delivered discovery to Ramos' counsel on February 21. The - 515 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

list of discovery items delivered to defense counsel spanned

41

⁄2 pages.

On March 8, 2018, a hearing was held on the State's motion

to extend discovery. However, at the start of the hearing, the

State informed the court that it had "the remainder of the

discovery that we have prepared ready to give the defense

today.” The State subsequently filed a second certificate of

compliance, indicating that it had delivered to defense counsel additional items of discovery consisting of more than 300

pages in reports, 126 pages of photographs, and over 100 audio

files from TSCI inmate and staff interviews. The State also

informed the court that its investigation was ongoing, "so there

may be additional discoverable items that come into the State's

possession.” The State indicated it would supplement the discovery as needed. Ramos objected to the State supplementing

discovery after the February 21 deadline. Defense counsel

asserted that they could not properly defend Ramos without all

of the relevant information and that the speedy trial clock was

continuing to run. The State countered, asking the district court

"to take into consideration the volume of material in this case

when thinking about [defense counsel's] comments that we

were doing anything in bad faith.”

In responding to the parties' arguments regarding discovery,

the district court made the following comments at the close of

the March 8, 2018, hearing:

Well, I think it's clear that there is a monstrous amount of

information here, and it's a practical issue that we're all

going to have to deal with.

The murder happened in March 2017. Whether the

State was precipitous in filing charges, I don't know, It's

not my job to make that decision. But certainly when

you file a murder case — and I am just looking at the

district court's file for dates. The transcript was filed

in September. Surely you had to know that you were

going to start to have to gather information. And so I am

not real happy about the fact that it took so long to get

things moving.- 516 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

I am glad that things are moving now, and right now

it's just a major headache for everybody. But we have got

— the clock is ticking. We have got masses of information to resolve, and I will do my best.

On March 22, 2018, the State filed a document titled "Claim

of Informer Privilege.” In the document, the State indicated

that it had provided some redacted discovery to Ramos, in

order to protect the names of inmate informants. The State

further explained:

[T]he State has complied with the Court's discovery order

to the extent we believe we're required to. In trying to be

transparent, we told the defense and the Court about this

other information. It's now before the Court. If the Court

decides that more of the information that we have should

be provided, then we are ready and willing to do that.

Ramos objected to the State's use of redacted discovery. The

district court expressed its frustration, telling the parties, "Okay.

Gamesmanship in this case is going to stop. It's on both sides.”

As to the State's actions, the court indicated, "The State has

been dilatory in furnishing information in a case that it filed in

October. The State is — well . . . I can't begin to tell you how

much that complicates this case.” Ultimately, the court decided

to examine an unredacted copy of the pertinent discovery to

determine whether Ramos was entitled to the information. The

court later ruled that the State must supply unredacted copies

of the pertinent discovery to Ramos and his counsel within

10 days.

On April 18, 2018, the State filed its third certificate of discovery compliance, indicating that it had delivered to defense

counsel an additional 13 items of discovery, including various

reports and photographs. On May 3, the State filed its fourth

certificate of discovery compliance, indicating that it had delivered to defense counsel an additional 21 items of discovery.

Apparently, these items constituted the unredacted versions of

previous discovery provided to the defense, which the court

had ordered the State to supply.- 517 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

Throughout the month of May, the State filed its fifth, sixth,

and seventh certificates of discovery compliance. These certificates reflected that a total of 18 additional discovery items

had been forwarded to defense counsel, including unredacted

copies of previously redacted material. In June, the State filed

its eighth certificate of discovery compliance, which indicated

that it had supplied defense counsel with four additional items

of discovery. Also in June, the State filed a motion to endorse

an additional 68 witnesses for trial.

At a hearing on June 15, 2018, Ramos asked the court to not

allow the State to endorse its additional witnesses. However,

the court granted the State's motion. Ramos also asked that

the court enter an order finding that any discovery turned over

to the defense after the February 21 discovery deadline not be

permitted as evidence at trial. The State explained to the court

that it had

provided almost all of the material the defense has on

February 21st and March 8th, and that the information

provided since March 8th is almost entirely related to

ongoing investigation. . . .

The information that [the continuing investigation]

might discover could be helpful to the State; it could be

helpful to the defense. In any event, we will promptly

turn it over.

The court then stated:

I realize everybody is in a bad position, but at some

point . . . Ramos is going to have to make a choice. He's

going to have to decide whether he's going to insist on

his speedy trial rights, go to trial at the end of July with

counsel who may or may not be prepared . . . or he can do

like just about every defendant in the [S]tate of Nebraska

facing a case this complex . . . waive his speedy trial

rights and let his attorneys get ready.

In July 2018, the State filed its 9th and 10th certificates

of discovery compliance, which indicated that it had supplied defense counsel with a total of 28 additional discovery - 518 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

materials. Such materials included audio recordings of recent

interviews with inmates, curriculum vitaes of the State's expert

witnesses, and photographs of TSCI.

On August 3, 2018, which was 3 days before the State was

to begin its presentation of evidence at trial, it filed its 11th

and 12th certificates of discovery compliance. The certificates

indicated that the State had forwarded to defense counsel

recent photographs taken of Ramos, audio recordings of recent

telephone calls made by Ramos, and audio recordings of recent

interviews with a former TSCI inmate and the victim's sister.

As a result of the filings of the 11th and 12th certificates of

discovery compliance, defense counsel filed a motion to continue the trial. The court took counsel's motion under advisement, but ultimately overruled it, as the jury had already been

empaneled. The court indicated that it would allow defense

counsel time to depose witnesses associated with the recently

filed certificates of discovery compliance.

Trial.

A jury was empaneled on August 2, 2018, after almost 4

days of voir dire. The parties gave their opening statements on

August 6. In the State's opening, it informed the jury that it

would not be presenting any forensic evidence or eyewitness

testimony which directly implicated Ramos in Galindo's murder. Rather, the State's evidence would consist of video footage taken from the prison's camera system and from hand-held

cameras utilized by prison staff during the March 2, 2017, incident. The State indicated that using the video footage, Tatiana

De Los Santos, a corporal and a correctional intelligence officer, tracked one of the several individuals that was observed

attacking Galindo. She was eventually able to identify that

inmate as Ramos.

In their opening statement, defense counsel told the jury

that Ramos was charged with Galindo's murder as a result of a

careless and inept investigation performed by law enforcement.

The defense pointed out that there was a great deal of missing - 519 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

video that would not be shown to the jury. It also iterated that

the State did not have any motive for Ramos to kill Galindo.

Ultimately, it contended that the State had misidentified Ramos

as being involved.

Prior to the testimony of any witness, the district court

granted Ramos' motion to sequester the witnesses. The court

informed both parties, "It will be the ongoing duty of counsel to advise their respective witnesses of the Court's rule of

sequestration.”

During the first 4 days of the State's case in chief, it presented the testimony of multiple witnesses who testified primarily about the physical makeup of TSCI; about generally

what occurred in housing units 2A and 2B on March 2, 2017;

and about the prison's video recording system. Notably, during

these first 4 days of trial, the State did not offer any evidence

to identify Ramos as the person who caused Galindo's death.

The State's last witness on the fourth day of trial was

Christopher Connelly, who testified that he was a major and the

current intelligence administrator for the Nebraska Department

of Correctional Services. In that position, he was responsible

for overseeing prison intelligence, including video and telephone surveillance. In March 2017, at the time of the incident

which resulted in Galindo's death, Connelly was the investigative captain at TSCI. During his testimony, Connelly detailed

the prison video recording system. Connelly then detailed his

specific involvement on March 2.

At the end of the fourth day of trial, Connelly and the

jury were watching an exhibit, which was video taken from

a hand-held camcorder operated by a correctional officer in

the prison's tower. The video demonstrated the view from the

tower into the 2A/B miniyard during the events of March 2,

2017. Defense counsel had asked Connelly to watch the video

and note the names of any of the inmates he was able to identify. Before the video had finished playing, the district court

released the jury for the weekend. Trial was to resume the next

Monday morning.- 520 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

Ramos' Motion

for Mistrial.

Before trial resumed that Monday morning, counsel appeared

before the court regarding a report that had been authored over

the weekend by the lead investigator assigned to the case, Neal

Trantham. In the report, Trantham indicated that he had worked

with De Los Santos over the weekend and that they had recovered the missing video footage alluded to in defense counsel's

opening statement. Trantham also noted in the report that, as

a part of their efforts to find the missing video, Connelly had

briefly attempted to assist them with a software issue.

Outside of the presence of the jury, defense counsel made

three separate motions with regard to Trantham's report. First,

the defense moved for a motion in limine to exclude from evidence the newly recovered video footage. Second, the defense

moved to exclude the trial testimonies of Trantham, Connelly,

and De Los Santos, due to a violation of the court's sequestration order. Finally, the defense moved for a mistrial. The

defense argued that the State had clearly instructed two of its

main witnesses, Trantham and De Los Santos, to perform further investigation during the trial. Trantham and De Los Santos

then involved Connelly in this investigation. And, Connelly

was in the middle of his trial testimony. The defense asserted

that it was prejudiced by the actions of Trantham, Connelly,

and De Los Santos in that its theory of the case had been compromised and Connelly's testimony had been tainted.

The State opposed the motion for a mistrial. It argued that

the witnesses had not violated the sequestration order because

that order only prohibited witnesses from hearing each other's

trial testimonies. In addition, it asserted that it did nothing

wrong by asking Trantham to conduct further investigation

during the trial, because such investigation was an attempt

to rebut defense counsel's claim that there were significant

portions missing of the prison video. The State also asserted:

"There is nothing prejudicial to [Ramos] that has occurred at

this point. There is no irreparable harm. If the Court believes - 521 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

that there is any type of prejudice, then that prejudice can be

cured with measures far short of granting a mistrial.”

After a recess, the district court granted the defense's

motion for a mistrial and discharged the jury. Subsequently,

the court scheduled a second trial to begin in January 2019

and accepted the parties' stipulation to change the venue for

the second trial.

Ramos' Plea in Bar.

On November 2, 2018, almost 3 months after the court

declared a mistrial, Ramos filed a plea in bar. Ramos alleged

that his "motion for a mistrial was granted due to prosecutorial conduct which was intended to provoke or goad [him] into

moving for a mistrial.” As such, Ramos argued that retrial of

the case was barred by the Double Jeopardy Clause.

An evidentiary hearing was held on the plea in bar on April

23, 2019. At the hearing, Ramos offered into evidence the

record from the first trial. In addition, he called three witnesses

to testify: Trantham, Connelly, and De Los Santos.

Trantham testified that he was the lead investigator assigned

to the case involving Galindo's murder at TSCI. He recalled

that sometime during the first week of the first trial, the prosecutors requested that he meet with De Los Santos again to try

and recover the missing video alluded to during defense counsel's opening statement. Trantham explained that he was aware

of what defense counsel said during his opening statement due

to the news media coverage of the trial.

Ultimately, Trantham set up a meeting time between him

and De Los Santos during the Friday of the first week of trial.

During this meeting, Connelly came to assist them with the

prison video software because he was more familiar with the

system. Trantham indicated that the prosecutors did not specifically request him to meet with Connelly, but, rather, Connelly

provided assistance only at the request of Trantham.

Trantham testified that when the prosecutors asked him to

meet with De Los Santos regarding the missing video, they

explicitly reminded him of the sequestration order and told - 522 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

him not to talk about any trial testimony. Trantham admitted

that during his meeting with De Los Santos and Connelly,

they collectively discussed how defense counsel's opening

statement was misleading because there was actually only 10

minutes of missing video. Trantham also admitted that during

the meeting, Connelly expressed frustration with defense counsel's attempting to attack his character during his testimony.

Trantham advised Connelly that they should not be discussing

his testimony.

Upon questioning by the State, Trantham testified that the

prosecutors never mentioned to him that they had concerns that

the case would end in Ramos' being acquitted. In addition, they

never advised Trantham of any "grave concerns” regarding the

trial process.

Connelly testified that on the Friday of the first week of

trial, he was at his office when he was asked by Trantham

and De Los Santos to assist with installing the prison video

software onto a computer. Connelly indicated that he installed

the software, gave Trantham and De Los Santos his user name

and password, and left the room. De Los Santos did not ask

for his assistance in actually searching for the missing video.

Connelly testified that he was aware of the sequestration order,

but he did not believe that he was creating any issue when he

was helping Trantham and De Los Santos. Connelly explained

that when he left the courtroom without having finished his testimony, the prosecutors told him to "know no more on Monday

when I came back than I did that night, not look at video, nothing.” (We note that no trial proceedings were held on Friday.)

Connelly believed that he abided by that restriction.

Connelly did admit that he mentioned to Trantham his frustration with defense counsel's attempting to bring up something from his past. However, Connelly explained that he did

not think this was a problem because that fact was not relevant

to the case.

De Los Santos testified that she had been trying, on her

own, to find the missing portions of the prison video for "some - 523 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

time.” In the week or two prior to trial, her search became

more urgent because she wanted the prosecutors to have all

of the evidence. On the Friday following the first week of

trial, she located the missing video on her hard drive, while

Trantham was present.

De Los Santos indicated that she had been informed of

the sequestration order by the prosecutors. Specifically, she

had been told not to talk about the case with other witnesses.

She denied having any contact with the prosecutors after the

trial began.

After the evidentiary hearing, the district court entered an

order overruling Ramos' plea in bar. In the order, the court

made factual findings on each of the factors set forth in State v.

Muhannad, 286 Neb. 567, 837 N.W.2d 792 (2013) (Muhannad

I), paying particular attention to whether the State had engaged

in a pattern of overreaching or error prior to the error which

resulted in the mistrial. The district court ultimately concluded

that Ramos had failed to sufficiently demonstrate that the State

goaded or provoked him into moving for a mistrial. Ramos

timely appealed.

ASSIGNMENT OF ERROR

Ramos asserts the district court erred in overruling his plea

in bar.

STANDARD OF REVIEW

[1] Issues regarding the grant or denial of a plea in bar are

questions of law. State v. Arizola, 295 Neb. 477, 890 N.W.2d

770 (2017), disapproved on other grounds, State v. Melton, 308

Neb. 159, 953 N.W.2d 246 (2021); State v. Williams, 24 Neb.

App. 920, 901 N.W.2d 334 (2017). On a question of law, an

appellate court reaches a conclusion independent of the court

below. Id.

[2] While the denial of a plea in bar generally involves a

question of law, we review under a clearly erroneous standard

a finding concerning the presence or absence of prosecutorial

intent to provoke the defendant into moving for a mistrial. - 524 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

State v. Muhannad, 290 Neb. 59, 858 N.W.2d 598 (2015)

(Muhannad II).

ANALYSIS

The parties do not dispute the propriety of the mistrial. The

issue presented in this appeal is whether concepts of double

jeopardy bar a retrial and, thus, whether the district court

should have granted Ramos' plea in bar.

Traditionally, the Double Jeopardy Clause has been viewed

as safeguarding three interests of defendants: (1) the interest in

being free from successive prosecutions, (2) the interest in the

finality of judgments, and (3) the interest in having the trial

completed in front of the first tribunal. Muhannad I, supra.

This appeal involves the defendant's interest in having the trial

completed in front of the first tribunal.

[3] The constitutional protection against double jeopardy

does not mean that every time a defendant is put to trial

before a competent tribunal, the defendant is entitled to go

free if the trial fails to end in a final judgment. Id. Balanced

against a defendant's interests in having the trial completed in

front of the first tribunal is society's right to one full and fair

opportunity to prove the defendant's guilt. Id. When society

is deprived of its right to attempt to prove a defendant's guilt

in a single prosecution because of a trial error, the interests of

society in vindicating its laws generally outweigh the double

jeopardy interests of the defendant. Id.

[4] It is the general rule that where a court grants a mistrial

upon a defendant's motion, the Double Jeopardy Clause does

not bar a retrial. Muhannad I, supra. A defendant's motion for

a mistrial constitutes a deliberate election on his or her part to

forgo the right to the trial completed before the first trier of

fact. Id. This is true even if the defendant's motion is necessitated by prosecutorial or judicial error. Id. When the mistrial

is declared at the defendant's behest, the defendant's right to

have his or her trial completed by a particular tribunal is, as a

general matter, subordinated to the public's interest in fair trials

designed to end in just judgments. Id.- 525 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

[5,6] There is a "'narrow exception'” to this general rule.

Muhannad II, 290 Neb. at 65, 858 N.W.2d at 604. In Oregon

v. Kennedy, 456 U.S. 667, 679, 102 S. Ct. 2083, 72 L. Ed. 2d

416 (1982), the U.S. Supreme Court held that where a defendant moves for and is granted a mistrial based on prosecutorial

misconduct, double jeopardy bars retrial when the "conduct

giving rise to the successful motion for a mistrial was intended

to provoke the defendant into moving for a mistrial.” The

Court in Oregon v. Kennedy, supra, rejected a "more generalized standard of bad faith conduct, harassment, or overreaching

as an exception to the defendant's waiver of his or her right to

a determination by the first tribunal.” Muhannad I, 286 Neb.

at 577, 837 N.W.2d at 800. Consequently, "[p]rosecutorial

conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on [the] defendant's

motion, . . . does not bar retrial absent intent on the part of the

prosecutor to subvert the protections afforded by the Double

Jeopardy Clause.” Oregon v. Kennedy, 456 U.S. at 675-76.

The Nebraska Supreme Court has further explained the limited nature of the exception espoused in Oregon v. Kennedy,

supra: "[I]n the absence of an intent to goad the defendant

into moving for mistrial, double jeopardy would not bar retrial

where the prosecutor 'simply made "an error in judgment”'

or was grossly negligent.” Muhannad II, 290 Neb. at 66, 858

N.W.2d at 604. It is the defendant's burden to prove this intent.

Muhannad II, supra.

[7] In Muhannad I, supra, the Nebraska Supreme Court set

forth a list of objective factors derived from and articulated

by state and federal courts for consideration when determining whether prosecutors intended to provoke the defendant

into moving for a mistrial. While not constituting a closed list,

these factors include the following: (1) whether there was a

sequence of overreaching or error prior to the errors resulting

in the mistrial; (2) whether the prosecutor resisted the motion

for mistrial; (3) whether the prosecutor testified, and the court

below found, that there was no intent to cause a mistrial; - 526 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

(4) the timing of the error; (5) whether the record contains any

indication that the prosecutor believed the defendant would be

acquitted; (6) whether a second trial would be desirable for the

government; and (7) whether the prosecutor proffered some

plausible justification for his or her actions. See Muhannad

I, supra. See, also, State v. Williams, 24 Neb. App. 920, 901

N.W.2d 334 (2017).

The district court considered each of the factors delineated

in Muhannad I, supra, in determining to overrule Ramos' plea

in bar. Similarly, we consider each of the factors in turn.

Sequence of Overreaching

or Error.

The crux of Ramos' assertion that the State intended to provoke him into moving for a mistrial is based upon his belief

that the State engaged in a pattern of misconduct "up to, and

during, the trial.” Brief for appellant at 11. In Ramos' brief

on appeal, he points to the State's "numerous discovery violations” as evidence that the proceedings below were "replete

with instances of the State['s] provoking Ramos to move for a

mistrial.” Id. Ramos states:

The State committed blatant and repeated discovery violations and obstruction of justice in contravention of

Ramos' Sixth Amendment constitutional rights throughout these proceedings. The State's violation of the sequestration order in the middle of the trial was not an isolated

incident; rather, it was the proverbial straw that broke the

camel's back when reflecting upon the pattern or sequence

of prior discovery violations by the prosecution . . . .

Brief for appellant at 10.

In the district court's order overruling Ramos' plea in bar,

the court rejected Ramos' argument that the State engaged in

a pattern of misconduct or error. Therein, the court explained:

The Court also finds that the State was unprepared to

release the massive amount of discovery material it had

in a timely manner. The Court has never believed that

the State did so maliciously; it simply was not ready - 527 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

to proceed when the charges were filed. The State filed

approximately ten Notices of Compliance, which continued until the time of trial. The Court finds that this failure

was not done in an attempt to goad the defense into moving for a mistrial; it was poor planning at the front end,

complicated by a massive flood of data on the tail end.

Upon our review, we do not find that the court committed

clear error in determining that the State's actions in continually

supplementing their discovery up to the time of trial were not

done with any intent to provoke a mistrial.

In Ramos' brief on appeal, he carefully recounts the numerous certificates of discovery compliance filed by the State

from February to August 2018. He also details his multiple

objections to the State's actions. However, Ramos does not

point to any evidence which would suggest that the State

was acting with an intent to provoke a mistrial during the

discovery process. Rather, our reading of the record reveals,

consistent with the district court's comments, that the State

was not acting maliciously. While the State did appear somewhat unprepared to turn over all of its discovery in February,

it did provide the defense with a large volume of information on February 21 and again on March 8. Moreover, as the

State repeatedly explained, the investigation into the incident

at TSCI on March 2, 2017, was ongoing, even as the parties

prepared for trial. Because of this ongoing investigation, the

State was receiving new information from law enforcement

on a regular basis. It provided the defense with this information as soon as it became available. We further note that in

comparison to the large volume of discovery forwarded to the

defense on February 21, 2018, and on March 8, the discovery

provided in April, May, June, July, and August consisted of

much smaller packages of information.

Based on the totality of the foregoing factors, we find no

evidence to support Ramos' generalized assertion that the

State's failure to comply with the court's discovery deadline

was done with any intent to provoke a mistrial. As such, - 528 -

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STATE v. RAMOS

Cite as 29 Neb. App. 511

we find that this factor weighs against granting Ramos' plea

in bar.

Prosecutors' Resistance to

Motion for Mistrial.

As the district court noted in its order, Ramos concedes that

the State actively resisted the motion for mistrial. The record

reflects that the State appeared to be surprised by the motion

for mistrial. The State zealously argued that Ramos had not

been prejudiced by the State's actions and that any issues

created by Trantham's recent report could be appropriately

handled by something much less harsh than the court's granting a mistrial. We conclude that this factor does not support a

finding that the State intended to provoke Ramos into requesting a mistrial.

Prosecutors' Intent to

Cause Mistrial.

In its order, the district court noted that the prosecutors did

not testify at the evidentiary hearing, nor were they called to

testify by Ramos. The district court then found that there was

no evidence presented at the hearing which would demonstrate

that the prosecutors intended to cause a mistrial by instructing

Trantham to look for the missing video footage. On appeal,

Ramos argues that we should "negatively construe[]” the prosecutors' failure to testify regarding their intent. Brief for appellant at 17. Ramos explains, "The State's decision, whether

strategical or for some other reason, to not offer any prosecutor

testimony on this point should be negatively construed against

the State and supports Ramos' position that Double Jeopardy

has attached and bars a retrial.” Id.

We decline to impute to the State an intent to cause a mistrial without any evidence of such intent. While it is true that

the prosecutors did not testify at the evidentiary hearing, it is

also true that Ramos had the burden to prove that the State

provoked him to request a mistrial. See Muhannad I, supra.

The State was under no burden to disprove the allegations - 529 -

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within Ramos' plea in bar. We agree with the district court that

there was no evidence presented to demonstrate that the prosecutors intended to cause a mistrial by instructing Trantham to

look for the missing video footage. Accordingly, we conclude

that this factor also does not support a finding that the State

intended to provoke Ramos into requesting a mistrial.

Timing of Error.

In Ramos' brief on appeal, he argues that the timing of the

State's misconduct is indicative of its intent to provoke a mistrial. Specifically, he explains:

[The violation of the sequestration order] took place

four days after the beginning of an expected two-to-three

week trial, with the State still in the early stages of its

case-in-chief. It is not like the State was close to the finish line or about to safely land the plane. The State had

not yet put on any evidence establishing Ramos' guilt.

Rather, it is plausible to infer that the State sought to hit

the reset button and reshuffle the deck in order to be dealt

a better and stronger hand.

Brief for appellant at 20. In the State's brief, it argues that the

timing of the mistrial actually bolsters its argument that it did

not intend to provoke a mistrial. The State points out that at

the time of the mistrial, it had not presented any of its core

evidence of Ramos' guilt. In particular, it had not presented

any video recordings of the attacks on Galindo. The State then

states, "It is illogical that the State would intend to cause a

mistrial before presentation of its best evidence.” Brief for

appellee at 36.

In the district court's order overruling Ramos' plea in bar,

the court found that the timing of the error weighed "slightly in

favor” of Ramos' position. The court noted that "[t]he mistrial

was granted primarily because it appeared that the witnesses

had violated the sequestration order, because the late discovery

of the 'missing video' came as a surprise to the defense, as well

as the culmination of the series of errors [during the discovery process].” However, the court did not further explain how - 530 -

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the timing of the mistrial in any way demonstrated the State's

intent to provoke Ramos' motion.

Upon our review, we find that the timing of the mistrial is

ambiguous as to the State's intent to provoke a mistrial. Ramos

asserts the timing was beneficial to the State because it was

still in the beginning stages of its case in chief and a "reset”

would not have resulted in much wasted time, but would have

resulted in stronger evidence during a second trial. Brief for

appellant at 20. However, the State argues the same timing

weighs against the desirability of a mistrial. It questions why

the State would have believed a mistrial was necessary when it

had not yet begun to present the core of its case against Ramos.

Given the ambiguity in this factor, we find that this factor does

not weigh either in favor of or against granting Ramos' plea in

bar. Therefore, to that extent, we find clear error in the district

court's resolution of this factor.

Prosecutors' Belief Regarding

Possible Acquittal.

Again, we note that the prosecutors did not testify at the evidentiary hearing. As such, there is little evidence to demonstrate

their belief about the possibility of an acquittal. Trantham did

testify that as the lead investigator on the case, he had a great

deal of contact with the prosecutors even after the trial started.

He testified that the prosecutors never gave him the impression

that they thought the trial would end with Ramos' being acquitted. In addition, the prosecutors did not discuss with Trantham

any concerns about how the trial was going. We also note that

at the time of the mistrial, the State had only just begun presenting its case to the jury. And, as we discussed above, most

of the evidentiary rulings had gone in the State's favor. The

State was not prohibited from introducing any of the evidence

which was produced to Ramos after the original February 21,

2018, discovery deadline.

In the district court's order overruling Ramos' plea in bar,

the court found, "What little evidence is in the record weighs - 531 -

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STATE v. RAMOS

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on the side of the prosecution being confident of a guilty verdict.” We cannot say the court clearly erred in this finding.

Desirability of Second

Trial for State.

The district court found that what "little evidence” was presented regarding whether a second trial would benefit the State

was in regard to the admissibility of the recovered video. The

district court noted that during a subsequent trial, the defense

would no longer be able to point to the missing video in support of its theory that law enforcement conducted a "shoddy

investigation.” Similar to the district court's statement, we do

not find much, if any, evidence in the record regarding the

desirability of a second trial for the State. The State's recovery of the missing video clearly negated a portion of Ramos'

defense. However, prior to the mistrial's being granted, the

State appeared to believe that the recovered video would be

admitted into evidence as part of its rebuttal case. Given this

belief by the State, a second trial would not be necessary to

negate Ramos' defense. We conclude that this factor does not

weigh in favor of granting the plea in bar.

Plausible Justification for

State's Actions.

The district court found that the State offered a plausible

explanation for instructing Trantham to look with De Los

Santos for the missing video footage. Specifically, the State

indicated that it wanted to find the missing video to rebut

the defense's theory that the rest of the video evidence was

somehow unreliable because portions of that evidence had

gone missing. We do not find clear error in the district court's

finding. As such, this factor does not support a finding that the

State intended to provoke Ramos into requesting a mistrial.

Resolution of Muhannad I Factors.

Upon our review, the record supports the district court's

conclusion as to all but one of the factors delineated in - 532 -

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Muhannad I, supra, and we find that factor to be neutral rather

than slightly favoring Ramos' plea in bar. The record before

us does not demonstrate a sequence of overreaching or error

prior to the error resulting in the mistrial. There is no evidence

that the prosecutors had an intention of causing a mistrial or

that they believed the evidence was insufficient to sustain a

conviction. And, the timing of the error resulting in the mistrial does not weigh for or against Ramos' position. Based on

the totality of the evidence presented, we cannot find that the

prosecutors intended to goad Ramos into moving for a mistrial.

There is simply a lack of evidence in the record to demonstrate

that the State intentionally committed prosecutorial misconduct or intended that such conduct would provoke a mistrial.

Therefore, we find that the district court's determination was

not clearly erroneous and that Ramos' plea in bar was properly denied.

For the foregoing reasons, we affirm the judgment of the

district court overruling Ramos’ plea in bar.