Petition for Writ of Certiorari — Augustine L. Cavitte, Petitioner v. Nebraska

A-19-000643

IN THE COURT OF APPEALS OF THE STATE OF NEBRASKA

— 0-----

THE STATE OF NEBRASKA,

Appellee,

VS.

AUGUSTINE CAVITTE

APPEAL FROM THE DISTRICT COURT OF

DOUGLAS COUNTY, NEBRASKA

Honorable Timothy P. Burns, District Court Judge

won-()----

BRIEF OF APPELLANT

THOMAS C. RILEY, #13523

Douglas County Public Defender

Bethany R. Stensrud, #24679

Assistant Public Defender

H05 Civic Center

Omaha, Nebraska 68183

Telephone: (402) 444-7175

bethany.stensrud@douglascounty-ne.gov

Attorneys for Appellant

TABLE OF CONTENTS

Statement of Jurisdiction of Appellate Court......... ec eeeecceeceeseeseeeeeeeeeseceseseseeeeaeecnssesseenes 1

Statement of the Case........cccccecceeessesseeeeseeeeeeeeeeeceeeeseeeseaeceseeeaecseecseeesseesssseseseseesseeeeneenseenes 1

AssianiiSnts OF HitOF .__...... .aorcoceoernnreconenrinarnsssiindsodhiad sekssina baad latest SIRNAER MANOR RNMONAENE 3

PROpOSitans OF LAW «csscascamesnnessra snares seen conansssnmmmnencnnnemancnmmmuorvanene ccemreenas ences 3

Statement Of Facts........ccccccsceeseeseeseceeceeeeseceeeeseeeeceeceseeseeseeseecsesseveesesesseseesceessecseeceeeseseneeseeons 5

Summary of Argument .........ccccceeccecceseceeeeeeeseeseeseeeeecseceeecaececeeseaseseeeeasnesseseessesceseaseneseneegs 9

Argument I.: THE DISTRICT COURT OF DOUGLAS COUNTY ERRED WHEN IT

DENIED MS. CAVITTE’S MOTIONS FOR MISTRIAL AND MOTION FOR

NEW TRIAL BASED ON PROSECUTORIAL MISCONDUCT... ccccecestesesteneeteeseees 9

Argument II.: THE DISTRICT COURT OF DOUGLAS COUNTY ERRED WHEN IT

ADMITTED BAD ACTS EVIDENCE THUS VIOLATING

NEB. REV. STAT. §24-404. .ociceccccssseesesceeeseeseceesseessesssssecssueesseseseesseseessesseessecnsesseenes 18

CONCIUSION .........cccseeececccecccccceccceccceceececcesteeeseusessnsnscescasecsceucvecsusecseeeteesesesteesensaguaaaasaasaeaees 31

TABLE OF AUTHORITIES

Cases Cited

Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851 (1987) sisscsssssssssasenescssnrsnenssnesennserrenesnanenns 5

Miranda v. Arizona, 384 U.S. 436 (1966) .....cecceccccseeeseceneeeseeeeeeeceeseeesneeseeeeseeeeeeeseeesesesssens 2

State v. Abdouch, 230 Neb. 929, 948, 434 N.W.2d 317, 328-29 (1989) oo... cccceeeeeeeeeeees 30

State v. Ash, 286 Neb. 681, 838 N.W.2d 273 (2013)..........4. tds becveneretemenomeneenaomnanimnononanel 4,21

State v. Beeder, 270 Neb. 799, 707 N.W.2d 790 (2006) .......ccescceccesesesssseeeeeeseseeeeseeeaeessens 9

Sate v. Boppré, 243 Neb. 908, 503 N.W.2d 526 (1993) sinsscsssimnmesnsecnenscane senesnuneverenes erase 2

State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010) ....scesessssssssesseseesseeseseeseeneeseeneens 28

State v. Custer, 292 Neb 88, 871 N.W.2d 243 (2015) oo. ceeceeeseeseeeeeeeeeeesseesceeeeseeeseeseeeas 12

State v. Dickson, 223 Neb. 397, 389 N.W.2d 785 (1986)......:cececcseeeseeeseeessseeeeseeeseeseeens 28

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

State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014)... eee ceeeeeeeeees Leeneeseeeeenseneeseees 10

State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000) 0... eee eeeeeeeeeeeesseeesssereeseeeeeeens 30

State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009) ....eceeeceseesseseeseeteeseeeeeeenees 5,28

State v. Green, 1995 WL 334763 (Neb. Ct. App. 1995)... cece cscseessessesseesssesesseeeeeeeens 30

State v. Hernandez, 299 Neb 896, 911 N.W. 2d. 524 (2018) oo. eeeseeeeeeseeeeeseerseeseeens 28

State v. Juraneck, 287 Neb 846, 844 N.W.2d 791 (2014) oon. ceescssesssseesescseseescseeenerens 4,24

Siate v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997) sscssccsanscssnsssaranosvecesoansensasorrncen 3,12

State v. Lofquest, 227 Neb 567, 418 N.W.2d. 595 (1988) oe eeeeeeteeseeeeeseeeeeseeseeseeeees 4,11

State v. McDowell, 1 Neb. App. 170, 488 N.W.2d 593 (1992) ooo. ceeeeeeseeeeeeseseeeeeeeeeees 30

State v. Nolan, 283 Neb. 50, 807 N.W. 2d 520 (2012) wees ceeeseseeeeeeeseeseeeeeteeeeeees 2,19,20

State v. Robinson, 771 Neb. 698, 715 N.W 2d 531 (2006) cs cencssves snesoncomereveenennsnernenenereren 20

State v. Rocha, 295 Neb. 716, 890 N.W. 2d 178 (2017)... .cscccscsecscseeseessseeseeseeeeeneenees 3,10

State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009) .0...cececesesssscsesseeeeeseeneeseeseeecseeseenes 30

State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006) ......cccesceesceeeeesseseneeeseesseeeseeseereees 5

State v. Williams, 26 Neb. App. 459, 920 N.W.2d 868 (2018)......cccsesesceseeseeseseseeeeeeees 23

State v. Woods, 6 Neb. App. 829, 577 N.W.2d. 564 (1998) .....cesesesececsseseeseeseeeeetenees 18,19

United States v. Sanchez, 614 F.3d 876, 884 (8th Cir. 2010)... eeeceseeeseeseeeesteeeeseeeeees 28

Wilson v. Lawrence, 260 F.3d 946, 952 .....eccccccsssccessseccesseeceesneeeeseneeeeesneareeseeeeeeeenseeererseeees 28

Wyrick v. Fields, 459 U.S. 42, 51 (1982)... ceeececessseseeseesesecseescseeseeeeeeeseeseneeeneeneees 26,29

Statutes Cited

Neb. Rev. Stat. § 25-1912 oo. ceecccceeeneeeeeeeeseeeceeeesseecseseeseeseenaeseseesesaeeesseeseeeeeeseeeesereeeaeey 1

Neb: Rev. Stat. § 2704 oss: cesvccnsnsasnenvnnsens mvnnsnsoane nacyencs ennoreneeenecesenanemenrs 2,3,4,18,19,22,23

Neb. Rew. Stat. § 28-3 10). s..n.nnonecasninniiss cd caenata sa canines guReeRAg ENT Enns MTORR HE 20

Neb. Rev. Stat. § 29-2301 ....cccccssereesnsorsenonnennnnenennennnsnsnansanaoidind ans daaccasetee a eiawenanenacanemene 1

Neb. Rev. Stat. § 29-2306 .......cccccccesssscetseeseeeeeseeeceeeecsceeeeneeceaesceseeseseeereaeeeessrersneeeeseeessseeeseees 1

STATEMENT OF JURISDICTION OF APPELLATE COURT

This is an appeal by Augustine Cavitte, (hereinafter “Ms. Cavitte”) from her conviction

after being found guilty following a jury trial of domestic assault, second degree, a class IIIA

felony, at Case Number CR 18-1581. On June 3, 2019, Appellant was sentenced to three years of

probation. (491: 22-24),

The Nebraska Constitution authorizes this appeal, Article I, Section 23 and Neb. Rev. Stat.

§ 25-1912 (Reissue 2016), §29-2301 (Reissue 2016), 29-2306 (Reissue 2016). The Notice of

Appeal was filed on July 2, 2019. An Order Allowing Appellant to Proceed In Forma Pauperis

was signed by the Honorable Timothy Burns, District Court Judge, on July 2, 2019.

STATEMENT OF THE CASE

(A) Nature of the Case

This is a criminal prosecution wherein Ms. Cavitte was charged with the offense of

domestic assault, second degree, a class IIIA felony, at Case Number 18-1581. Domestic assault,

second degree, a class IIIA, is punishable up to three years imprisonment and twelve to eighteen

months post release supervision. On September 18, 2019, Appellant filed a motion to suppress

regarding Ms. Cavitte’s statements made to Omaha Police. On November 9, 2018, the Honorable

Thomas A. Otepka heard Ms. Cavitte’s motion to suppress. After hearing evidence and argument,

the district court issued an order overruling Ms. Cavitte’s motion to suppress on February 22, 2019.

During jury trial, Ms. Cavitte preserved her objection to the denial of her motion to suppress. Ms.

Cavitte also objected to the admission of evidence which included prior bad acts by Ms. Cavitte,

which was also overruled. After State’s closing argument, but before Ms. Cavitte began her close,

Ms. Cavitte moved for mistrial based on prosecutorial misconduct, which was

overruled. Appellant then requested an admonishment to the jury regarding the prosecutorial

misconduct and jury instruction regarding Ms. Cavitte’s privilege against self-incrimination. After

the close of the case, the jury returned a verdict of guilty. On April 1, 2019, Ms. Cavitte moved

for a new trial which was overruled by the district court on May 31, 2019.

(B) Issue Tried in the Court Below

The issue presented to the court below was whether Appellant was guilty of the offense

charged beyond a reasonable doubt.

(C) How the Issues Were Decided and Judgment Entered

Following a jury trial, Appellant was found guilty of domestic assault, second degree. The

district court sentenced Ms. Cavitte to three years of probation.

(D) Scope of review

Whether to grant a motion for mistrial or grant a new trial is within the trial court’s

discretion, and an appellate court will not disturb a trial court’s rule unless the court abused its

discretion. State v. Dixon, 286 Neb. 334, 837 N.W.2d 496, 498 (2013) and State v. Boppre, 243

Neb. 908, 503 N.W.2d 526 (1993).

It is within the discretion of the trial court to determine relevancy and admissibility of

evidence of other wrongs or acts under Neb. Rev. Stat. S 27-404. State v. Nolan, 283 Neb. 50,

807 N.W. 2d 520.

Upon review of a motion to suppress based upon the involuntariness of a statement,

wherein the claim is that it was elicited in violation of the safeguards established in Miranda v.

Arizona, 384 U.S. 436 (1966), an appellate court must apply a two-part standard of review. A trial

court’s findings with respect to historical facts are reviewed for clear error. The issue as to whether

these facts were sufficient to meet constitutional standards is a question of law, and thus is

reviewed de novo. State v. Juranek, 287 Neb. 846, 848, 844 N.W.2d 791, 796 (2014).

ASSIGNMENT OF ERROR

I.

The District Court of Douglas County erred when it denied the motion for mistrial and

motion for new trial based on prosecutorial misconduct.

II.

The District Court of Douglas County erred when it admitted evidence of Ms. Cavitte’s

prior bad acts falling under Neb. Rev. Stat. § 27-404.

Il.

The District Court of Douglas County erred in overruling Ms. Cavitte’s Motion to

Suppress.

PROPOSITIONS OF LAW

I.

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. State v. Rocha, 295

Neb. 716, 757, 890 N.W. 2d 178, 208, (2017).

Il.

Once the defendant has produced sufficient evidence to raise the defense, the issue is then

one the State must disprove. State v. Kinser, 252 Neb. 600, 607, 567 N.W.2d 287, 292 (1997).

Il.

A defendant is not required to plead and give notice of an affirmative defense of ...self-

defense. State v. Kinser, 252 Neb. 600, 607, 567 N.W.2d 287, 292 (1997).

IV.

The Supreme Court of Nebraska has held that in cases where it comes down to a one-onone situation, i.e. the word of a defendant against the word of the prosecution witness, the

importance of the defendant’s credibility becomes so significant that prosecutorial error attacking

that credibility cannot be harmless beyond a reasonable doubt. State v. Lofquest, 227 Neb 567,

571, 418 N.W.2d. 595, 597 (1988)(emphasis supplied).

V.

The [inextricably intertwined] rule applies “when both acts are part of a single criminal

episode or when the other acts were necessary preliminaries to the crime charged.” State v. Ash,

286 Neb 681, 693, 838 N.W.2d 273, 283 (2013).

VI.

[A]pplying the inextricably intertwined exception too broadly would eviscerate the

procedural protections that apply to evidence presented under Neb. Rev. Stat. § 27-404(2). State

v. Ash, 286 Neb. 681, 696, 838 N.W.2d 273, 284 (2013) (emphasis supplied).

Vil.

When Miranda warnings are inserted in the midst of coordinated and continuing

interrogation, they are likely to mislead and deprive a defendant of knowledge essential to her

ability to understand the nature of her rights and the consequences of abandoning them. State v.

Juraneck, 287 Neb 846, 859, 844 N.W.2d 791, 803 (2014) (citing Missouri v. Seibert, 542 U.S.

600, 124 S. Ct. 2601 (2004)).

VIII.

A valid Miranda waiver must be voluntary in the sense that it was the product of a free and

deliberate choice and made with a full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it. See State v. Goodwin, 278 Neb. 945, 774

N.W.2d 733 (2009); State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006). Citing Colorado v.

Spring, 479 U.S. 564, 107 S.Ct. 851 (1987).

STATEMENT OF FACTS

On April 30, 2018, Omaha Police were dispatched to 1217 South 25« Avenue for report of

an assault. (3: 20-23) Throughout the home were several cans of beer and a large bottle of vodka.

(14: 8-13). Officers immediately place Ms. Cavitte in a police cruiser where an interrogation was

conducted at first by Sergeant Baines (“Sgt. Baines’’) and then later at Omaha Police Headquarters

by Detective Kreikemeier (“Det. Kreikemeier”). (E1,10: 10, located between page 482-483 & E2,

24: 24, located between page 482-483). While Ms. Cavitte was admittedly detained, Sgt. Baines

began questioning Ms. Cavitte before Miranda warnings were administered. (E1,10:10, located

between page 482-483 & 11: 24). Ms. Cavitte was crying and slurring her words. (13: 16-25 &

14: 1-4& El, 10:10, located between page 482-483). Sgt. Baines asked if Ms. Cavitte was

drinking, which was answered in the affirmative. (15: 13-15). Sgt. Baines asked what was going

on that night, points out the scratches on Ms. Cavitte’s neck, asks Ms. Cavitte how she received

those scratches to which Ms. Cavitte responds, “a disagreement.” (15:13-25 & 16:1-8 & E1,10:

10, located between page 482-483). Then Sgt. Baines asks Ms. Cavitte what the disagreement was

about to which Ms. Cavitte responds, “we hurt each other.” (16: 8-11 & E1,10: 10, located between

page 482-483). After this conversation, Miranda warnings were administered and statements

continued regarding the altercation with Michael Cavitte (“Mr. Cavitte”). (E1,10: 10, located

between page 482-483).

The warnings were given while Ms. Cavitte was detained in the cruiser, in the dark, with

Sgt. Baines asking the questions and Officer Miller writing down the responses. (17: 9-25 E1,10:

10, located between page 482-483). The advisory form was never shown to Ms. Cavitte. (18: 3-

5). Sgt. Baines resumes the interrogation by reminding Ms. Cavitte what she had just admitted to

the officers. (17:6-8 & E1,10: 10, located between page 482-483). After this interrogation, Ms.

Cavitte was transported to Omaha Police Headquarters and placed in a small interrogation room.

(E1,10: 10, page where exhibit is found & E2, 24: 24, located between page 482-483).

Recordings of the interrogation begin at 12:35 a.m. (E2, 24: 24, located between page 482-

483). An hour later, at 1:25 a.m. Det. Kreikemeier checks on Ms. Cavitte, when she requests to

use the restroom. (E2, 24: 24, located between page 482-483). At 1:48 am. forensic

photographers photograph Ms. Cavitte’s injuries. (E2, 24: 24, located between page 482-483).

Finally, at 1:53 a.m. Ms. Cavitte is allowed to use the restroom. (E2, 24: 24, located between page

482-483). At 1:57 am. Det. Kreikemeier resumes the interrogation of Ms. Cavitte. (E2, 24: 24,

located between page 482-483). Det. Kreikemeier also noticed the odor of alcohol emanating from

Ms. Cavitte. (27: 18-20 & E2, 24: 24, located between page 482-483). Throughout the

interrogation, Ms. Cavitte was crying, belching, mumbling, slurring her words, speaking in

tangents, and had to be constantly redirected. (35: 3-18 & 38: 8-9 & E2, 24: 24, located between

page 482-483). Det. Kreikemeier used profane language and raised his voice. (33:5-12). Miranda

warnings were not administered prior to the interrogation by Det. Kreikemeier of Ms. Cavitte. (E2,

24: 24, located between page 482-483).

From March 18, 2019, to March 20, 2019, a jury trial was conducted. During trial, over

defense’s objection, evidence of prior bad acts by the defendant were admitted without first

conducting a hearing. (188-191:1-18 & 265: 13-23 & E42, 246: 251, 252 & 265:13-23). This

\

evidence was admitted through Ms. Cavitte’s interrogation video. The relevant portion was:

Det. Kreikemeier: “So these past 3 days you’ve been staying there trying to work on the

marriage because in the past there’s been abuse, mental physical like that...”

Ms. Cavitte: “And drinking.”

2:06:47

Det. Kreikemeier: “By both or just him or...”

Ms. Cavitte: “Hmmmm....”

Det. Kreikemeier: “You can be honest with me.”

Ms. Cavitte: “50/50.”

Det. Kreikemeier: “So you both have beat up on each other.”

(E42, 246: 251, 252).

On March 19, 2019, a jury instruction conference was held and no objections were made.

(429-431). However, on March 20, 2019, during closing argument, the State continuously referred

to Ms. Cavitte’s failure to report a claim of self-defense to Omaha Police and/or the prosecution

in the time leading up to trial by arguing the following:

“.. ten and a half months after this took place when [Ms. Cavitte] was in an interview room

with a detective for over an hour and during no time did [she] state anything about [Mr.

Cavitte] using any threats against [her], prior to [her] cutting him?...”

(437; 14-20).

“’.. nowhere in the ten and a half months leading up to this trial was there any evidence that

[Ms. Cavitte] tried to reach out to law enforcement to change her story.”

(437: 22-24),

“Does it make sense that you’re advised of your rights and you’re given an opportunity to

give your version of events with not only one officer, but two officers, and you’re with

officers for hours and nowhere in there do you bring up any fact of being attacked, stating

that you’re the victim? Wouldn’t that be relevant information that law enforcement would

want to know in gathering their reports? Is that what happened here? No. The elephant

in the room did not come up when she had the opportunity to do so. Detective Kreikemeier

at the end of the interview was, like, is there anything else I should know? No.”

(440: 6-18).

“Tt doesn’t make sense that Augustine Cavitte, mere hours after the assault and after being

in contact with law enforcement for hours, intending to get her side of the story from her,

is just now informing us of this self-defense ten and a half months after the assault took

place.”

(442: 13-18).

After the State concluded their argument, but before Ms. Cavitte began her argument, Ms.

Cavitte objected to the statements made by the State and moved for mistrial. (445-446:1-19). The

objection was overruled. (446: 20-23). Ms. Cavitte next requested a curative instruction, that the

jury be instructed on Ms. Cavitte’s right to against self-incrimination, and that the jury be

admonished to not consider the statements made in deliberations. (446:24-25 — 447: 1-8). The

court simply stated: “with respect to counsel’s statement about the defendant having ten months

to say something, disregard that.” (447:11-13). After closing arguments were finished, the matter

was submitted to the jury who returned a guilty verdict. (479: 23-25). On March 27, 2019, Ms.

Cavitte moved for a new trial. (T110). On May 31, 2019, the district court overruled that motion.

(T115).

SUMMARY OF THE ARGUMENT

The District Court of Douglas County committed an abuse of discretion when it failed to

grant Ms. Cavitte’s motions for mistrial and new trial based on prosecutorial misconduct. The

State repeatedly argued to the district court and to the jury that Ms. Cavitte had an obligation to

disclose her defense to either Omaha Police and/or prosecution in the months leading up to

trial. Such an argument violates Ms. Cavitte’s presumption of innocence as it constitutes illegal

burden shifting. The argument also improperly comments on Ms. Cavitte’s right against selfincrimination. While the court did admonish the jury regarding part of the misconduct, what

admonishment was provided was inadequate at best. The district court also committed an abuse

of discretion by admitting prior bad acts of Ms. Cavitte’s without first holding a separate hearing

outside the presence of the jury. Finally, the district court erred in allowing statements made by

Ms. Cavitte to Omaha Police as the statements were not compliant with Miranda and were not

knowingly, intelligently, or voluntarily made.

ARGUMENT

I.

THE DISTRICT COURT OF DOUGLAS COUNTY ERRED WHEN IT DENIED

MS. CAVITTE’S MOTIONS FOR MISTRIAL AND MOTION FOR NEW TRIAL BASED

ON PROSECUTORIAL MISCONDUCT.

A mistrial is granted “when a fundamental failure prevents a fair trial.” State v. Beeder,

270 Neb. 799, 803, 707 N.W.2d 790, 794 (2006)(disapproved on other grounds by State v.

McCulloch, 274 Neb. 636, 742 NW.2d 727 (2007)). Such fundamental failures include an

egregious statement by counsel that is prejudicial, the improper admission of prejudicial evidence,

or the presentation of incompetent matters to the jury. Jd. at 803, 707 N.W.2d at 795. In acriminal

case, “[p]rosecutors are charged with the duty to conduct criminal trials in a manner that provides

the accused with a fair and impartial trial.” State v. Dubray, 289 Neb. 208, 222, 854 N.W.2d 584,

601 (2014). Thus, because of this high standard that prosecutors are held to, “prosecutorial

misconduct” cannot easily be defined. Jd. In general, prosecutorial misconduct occurs wherein

the prosecutor engages in conduct that is in violation of ethical or legal standards that may or will

undermine a criminal defendant’s constitutional right to a fair trial. Id.

When reviewing a claim of prosecutorial misconduct, the first inquiry is whether the

prosecutor’s act constitutes misconduct. Jd. at 222, 854 N.W.2d at 602. When a prosecutor’s act

does not mislead and unduly influence the jury, it is not prosecutorial misconduct. Jd. at 222, 854

N.W.2d at 602. However, if the act does amount to misconduct, the second inquiry is whether the

prosecutor’s act prejudiced the defendant’s right to a fair trial. Id. at 222-223, 854 N.W.2d at

602.

Namely, prosecutorial misconduct prejudices a criminal defendant’s right to a fair trial

wherein the misconduct “so infected the trial that the resulting conviction violates due process.”

Id. at 223, 854 N.W.2d at 602. In conducting said analysis, the context of the trial must be

considered as a whole. Jd. To determine whether a prosecutor’s improper conduct prejudiced the

defendant’s right to a fair trial, the following factors must be taken into account: “(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.” Jd.

To determine if the State committed misconduct, this Court should look to the prejudicial

comments made in State v. Rocha, 295 Neb. 716, 890 N.W. 2d 178, (2017). In that case, the State

10

was allowed, over defense objection, to inquire whether the defense had requested its own testing

of bloodstains, which it had not. Jd. at 757-758, 890 N.W. 2d 178, 209, (2017). The Supreme

Court of Nebraska explained that the State must prove every element of an offense beyond a

reasonable doubt and may not shift the burden of proof to the defendant. Jd. at 757, 890 N.W. 2d

178, 208, (2017). 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. Jd. Doing so could

erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.

Id. The court found that the State’s comments were misconduct and prejudicial because they may

have led the jury to believe the defendant had an obligation to test the evidence in order to prove

his innocence. Jd. at 758, 890 N.W. 2d 178, 209, (2017). Jd. Thus, the court properly found that

the comments were improper misconduct.

This Court should also look to the decision in State v. Lofquest, 227 Neb 567, 418 N.W.2d.

595 (1988). In Loftquest, the State committed prosecutorial misconduct when commenting on the

Loftquest’s failure to tell his story to the police at any time prior to the trial. The relevant

problematic comment the prosecutor made in closing argument was:

“Tt wasn’t me.’ But, who does he tell that story to? Did he tell it to the police? No.

He admitted to you this morning that he knew that if he told the police where he

was, the police would go out and they would look... [for evidence];...they’d be

trying to verify his story. He stated he knew that. And he didn’t tell them anything.”

Id. at 569, 418 N.W.2d. 595, 596-97. The court found that the remarks as to what the police might

have done had Lofquest told his story, as he should have prior to trial, invited jurors to speculate

about an investigation that might as easily have taken place. Jd. at 570, 418 N.W.2d. 595, 597. The

11

court therefore concluded that the prosecutor violated Loftquest’s constitutional right to due

process of law. Id.

The district court in the present case relied on State v. Custer, 292 Neb 88, 871 N.W.2d

243 (2015) when finding that the State had not committed misconduct; however, Custer is clearly

distinguishable. (T120). In State v. Custer, Custer argued that questionable statements made by

the prosecutor in closing argument violated Custer’s Fifth Amendment right to remain silent, the

court disagreed. Jd. In Custer, the prosecutor referred to the amount of time Custer had to prepare

his testimony prior to trial, “Custer wrapped his story around the forensics after having 15 months

to look at it by hearing the testimony about seeing—here's the angle here and know that

[McCormick] go [sic] wounded right here,” and later repeated that “Custer forms his story around

the forensics.” Jd. at 111, 871 N.W.2d 243, 261. The court found that such a remark did not

comment on Custer’s silence, but instead was a remark on Custer’s credibility. Jd. The court

therefore concluded that the statement was not improper and the State did not commit prosecutorial

misconduct. Id.

The facts at bar are similar to Rocha and, Lofquest not Custer. Here, the State routinely

committed prosecutorial misconduct when misstating the law by arguing for an illegal shifting of

the burden. While there is an exception to the rule in instances where the defense asserts selfdefense, once the defendant has produced sufficient evidence to raise the defense, the issue is then

one the State must disprove. State v. Kinser, 252 Neb. 600, 607, 567 N.W.2d 287, 292 (1997). As

the State conceded themselves, enough evidence was produced to warrant the self-defense jury

instruction, thus shifting the burden back to the State to disprove self-defense. (T89). The State

committed misconduct when they argued that Ms. Cavitte should have disclosed her self-defense

claim to Omaha Police and/or the prosecution.

12

Specifically, the State argued, “...nowhere in the ten and a half months leading up to this

trial was there any evidence that [Ms. Cavitte] tried to reach out to law enforcement to change her

story.” (437: 22-24). This is the type of argument misstates the law and purposefully leads the

jury to believe that Ms. Cavitte carried the burden of proving self-defense. As in Rocha, this Court

should find that the State’s comments were misconduct and prejudicial because they led the jury

to believe Ms. Cavitte had an obligation to come forward Omaha Police and/or the prosecution

with her claim of self-defense in order to prove her innocence. Not only does this argument

constitute burden shifting, it also affects Ms. Cavitte’s right against self-incrimination.

The State constantly referred to Ms. Cavitte’s failure to bring forward her self-defense

testimony to Omaha Police and/or the prosecutor’s office. (437: 14-20 & 22-24; 440: 6-18; 442:

8-20). This argument suggests that Ms. Cavitte was required to waive her right against selfincrimination when Nebraska law has made it clear that “[a] defendant is not required to plead and

give notice of an affirmative defense of ...self-defense.” Kinser, 252 Neb. at 607, 567 N.W.2d

292. As in Loftquest, the State committed prosecutorial misconduct when commenting on Ms.

Cavitte’s failure to tell her story to the police at any time prior to the trial. The State’s argument

invited jurors to speculate about an investigation that might as easily have taken place if Ms.

Cavitte had divulged her self-defense claim earlier.

Moreover, the statements made by the State are unlike the comments made in Custer. The

arguments by the State in this case were not merely a comment on Ms. Cavitte’s credibility as a

witness to develop her testimony in the months leading to trial like they were in Custer. Here, the

State specifically commented, on numerous occasions that Ms. Cavitte should have waived her

right against self-incrimination and come forward to Omaha Police and/or the prosecution prior to

trial.

13

As evidenced throughout the entire case, the State committed misconduct by arguing that

Ms. Cavitte had some duty to provide her claim of self-defense to Omaha Police and/or

prosecution. Overall, the State encouraged the jury to place themselves in the position of the

defendant by arguing, “you’re advised of your rights and you’re given the opportunity to give your

version of events with not only one officer, but two officers, and you’re with officers for hours and

nowhere in there do you bring up any fact of being attacked, stating you’re the victim...” (440: 6-

17). This argument suggest to the jury that they should think about what they would have done if

they were the defendant. This type of argument is “universally condemned because it encourages

the jury to depart from neutrality and decide the case on the basis of personal interest and bias

rather than on evidence.” (440: 6-18) U.S. v. Palma, 473 F. 3d 899, 902 (8th Cir. 2007). Since the

State’s arguments were misconduct that mislead and unduly influenced the jury, the second inquiry

is whether the prosecutor’s act prejudiced the defendant’s right to a fair trial.

Here, the degree to which the State’s conduct or remarks tended to mislead or unduly

influence the jury weighs in favor of prejudice because the misconduct was so extensive. The

depth and frequency of the misconduct was littered throughout the entirety of the case. This Court

does not have to limit itself to the above statements made in closing when determining the illegality

of the arguments made. Throughout the entire case, the State consistently argued that Ms.

Cavitte’s was required to disclose her claim of self-defense in the months leading up to trial. For

example, during a motion in limine, the State argued that Ms. Cavitte should be precluded from

presenting evidence of Mr. Cavitte’s character for violence through the testimony of Ms. Cavitte

alleging that the defense was required to produce such evidence to the State before trial. (51:19-

25 & 52: 1-17 & T66-72). Additionally, during trial, the State asked questions that, in hindsight,

clearly indicate the State’s belief that Ms. Cavitte had some obligation to divulge her self-defense

14

testimony to Omaha Police and were not just a comment on her credibility. The State asked the

following:

State: “Did [Ms. Cavitte] volunteer to you about where on her body she might have

received some of those punches during this fist fight?”

Det Kreikemeier: “She didn’t disclose where they were at.”

State: “But you still gave her an opportunity to disclase that?”

Det. Kreikemeier: “She had the opportunity.”

State: “At the very end of your interview do you say, ‘is there anything else you think that

I should know about this before I come to a decision?’”

Det. Kreikemeier: “Yes.”

State: “What did she say?”

Det. Kreikemeier: “She didn’t provide any additional details.”

State: “At any point during the time where she’s volunteering this information to you, does

she volunteer any information about being in fear of Michael Cavitte prior to grabbing the

knife?”

Det. Kreikemeier: “No.”

State: “At any point where she’s volunteering this information, does she say anything about

any force being applied to her by Michael before retrieving the knife?”

Det. Kreikemeier: “No.”

State: “At any point before...grabbing the knife, did she volunteer any information about

Michael Cavitte threatening her?”

Det. Kreikemeier: “No.”

15

State: “At any point during the interview does she volunteer any information that she

grabbed the knife to defend herself?”

Det. Kreikemeier: “No.”

(300: 1 - 301: 6). Furthermore, when the State was given the opportunity to respond to Ms.

Cavitte’s motion for mistrial, the State reiterated its argument by explaining,

“II]t’s the State’s position that we’re just now hearing of the self-defense claim, and that

[Ms. Cavitte] had ample opportunity to provide law enforcement—when she’s speaking

with them, to provide them information about this... The State’s just referencing the lack

of information provided by the defendant during this case.”

(446: 2-11). Here, the State clarified their belief to the district court that Ms. Cavitte was somehow

required to come forward to Omaha Police and/or prosecution with her self-defense claim earlier.

Given the vast degree and extent to which the prosecutor’s misconduct mislead and unduly

influenced the jury these two factors are weighted in favor of prejudice. This Court next looks to

whether defense counsel invited the remarks. No such inviting remarks were made, thus this third

factor is weighed in favor of prejudice.

Next, this Court assesses whether the district court provided a curative instruction. After

Ms. Cavitte’s motion for mistrial was overruled, an admonishment was provided but was

inadequate. The district court simply stated: “with respect to counsel’s statement about the

defendant having ten months to say something, disregard that.” (447: 11-13). The district court

failed to review what the State argued from the record, failed to provide the full statements that

were improper and should have been disregarded, and failed to explain why the statements could

not be used in deliberations. Simply put, the admonishment was inadequate at best. In addition to

requesting an admonishment, Ms. Cavitte also requested the jury be instructed that Ms. Cavitte’s

16

right against self-incrimination cannot be used against her. (447: 3-7). While the jury was

instructed that Ms. Cavitte is presumed innocent and the burden never shifts to the defense, the

district court failed to include a curative oral instruction regarding Ms. Cavitte’s right against selfincrimination. The action, or inaction, by the court weighs in favor of finding prejudice.

Finally, the Court looks to the strength of the evidence supporting the conviction. Again,

this Court should look to the Lofquest case for guidance when determining prejudice. In Lofquest,

the court reasoned that because there were no eyewitnesses to the attack on the victim, the

defendant’s credibility as a witness certainly played a major role in the jury’s evaluation of the

veracity of his story. Lofquest, 227 Neb. at 571, 418 N.W.2d. at 597. The court explained that the

prosecutor’s comments during trial and in closing could not be said to constitute an inconsequential

passing remark. Jd. The jury was allowed to consider the comments fully, after defense objection

which was overruled and no curative instruction was given. Jd. The court therefore held that in

cases where it comes down to a one-on-one situation, 1.e. the word of a defendant against the word

of the prosecution witness, the importance of the defendant’s credibility becomes so significant

that prosecutorial misconduct attacking that credibility cannot be harmless beyond a reasonable

doubt. Jd. (emphasis supplied).

As in Lofquest, Ms. Cavitte’s credibility as a witness played a major role in the jury’s

evaluation of the veracity of her story as there were no other witnesses to the alleged attack on Mr.

Cavitte. Therefore, the prosecutor’s comments during closing cannot be inconsequential passing

remarks. Since this is a case where there were no other witnesses—where the alleged victim did

not testify—the importance of Ms. Cavitte’s credibility is so significant, the prosecutorial

misconduct is not only prejudicial, but cannot be harmless beyond a reasonable doubt. The

17

remaining evidence that was not tainted by the State’s misconduct is weak, thus weighing the final

factor strongly in favor of prejudice.

Overall, the prosecutorial misconduct in this case so inherently infected the entire trial that

Ms. Cavitte’s resulting conviction violates due process. Weighing the entirety of the factors, this

court should conclude the misconduct was prejudicial and the failure of the district court to grant

a mistrial or new trial was an abuse of discretion.

Il.

THE DISTRICT COURT OF DOUGLAS COUNTY ERRED WHEN IT

ADMITTED BAD ACTS EVIDENCE THUS VIOLATING NEB. REV. STAT. §24-404.

The district court committed an abuse of discretion when it admitted evidence of Ms.

Cavitte’s bad acts over Ms. Cavitte’s objection. Neb. Rev. Stat. § 27-404 provides for the

admissibility of evidence of other crimes, wrongs, or acts for purposes other than to show that a

person acted in conformity with his or her character. State v. Woods, 6 Neb. App. 829, 836, 577

N.W.2d. 564, 569 (1998). Such evidence may be admissible as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Jd. When such

evidence is admissible, evidence of other crimes, wrongs, or acts of the accused may be offered in

evidence by the prosecution if the prosecution proves to the court by clear and convincing evidence

that the accused committed the crime, wrong, or act. Jd. Such proof shall first be made outside the

presence of any jury. Jd. The district court admitted exhibit 42 which included the following

comments over Ms. Cavitte’s objection:

Det. Kreikemeier: “So these past 3 days you’ve been staying there trying to work on the

marriage because in the past there’s been abuse, mental physical like that...”

Ms. Cavitte: “And drinking.”

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2:06:47

Det. Kreikemeier: “By both or just him or...?”

Ms. Cavitte: “Hmmmm....”

Det. Kreikemeier: “You can be honest with me.”

Ms. Cavitte: “50/50.”

Det. Kreikemeier: “So you both have beat up on each other.”

(E42, 246: 251, 252). When admitting the above statements over Ms. Cavitte’s objection, the

district court found that the statements were not bad acts falling under Neb. Rev. Stat. § 27-404

because the statements made were intrinsic evidence. (T116). The district court cites that,

“i|ntrinsic evidence, or evidence necessary to tell a complete story of the crime, is admissible to

provide the context in which the crime occurred.” (T116 citing State v. Nolan, 283 Neb. 50, 807

N.W.2d 520 (2012)). This conclusion is an abuse of discretion.

As in the present case, the trial court in State v. Woods committed reversible error when

admitting statements concerning prior bad actions of Woods. Jd. at 837, 577 N.W.2d. 564, 569. In

Woods, the problematic evidence was statements revealed through State’s witness that Woods had

received controlled substances without a prescription when that witness testified to sharing pills

with Woods. Jd. at 837, 577 N.W.2d. 564, 569. The same witness testified that Woods tore the

quantity portion off a prescription bottle label and stole a portion of the pills. Jd. The State argued

such testimony was admissible because the statement was volunteered by the witness and not a

result of a question by the State soliciting such testimony. Jd. Further, the prosecution argued that

such testimony was not a bad act because it was foundational information for the present charge

of acquiring a controlled substance through fraud. Jd. The trial court’s decision was an abuse of

discretion because the testimony was clearly evidence of prior bad acts of Woods, and if they were

19

offered for any permissible use rather than to show conformity, a separate hearing was required.

Id. This Court found an abuse of discretion, reversed the district court, and remanded for new

trial.

As in Woods, the above statements are admissions of bad acts and should not have been

admitted at trial. Det. Kreikemeier asked Ms. Cavitte if she had ever physically abused Mr. Cavitte.

(E42, 246: 251, 252). She responded in the affirmative and accepted responsibility. (E42, 246:

251, 252). This is a clear admission to not just bad acts, but crimes punishable by jail. There is

no requirement that the bad act be charged by the State or result in jail time to be inadmissible.

Moreover, assault by mutual combat or consent is a crime in Nebraska punished as a class II

misdemeanor. Neb. Rev. Stat. § 28-310 (2). The district court found that the evidence was

“intrinsic evidence” and relied on State v. Nolan as its authority. (T116).

In Nolan, the Supreme Court of Nebraska addressed whether or not the admission of a .44-

caliber gun was not abuse of discretion because the State was unable to prove that Nolan’s gun

was the murder weapon. State v. Nolan, 283 Neb. 50, 66, 807 N.W. 2d 520, 537 (2012). The court

reasoned that “bad acts that form the factual setting of the crime in issue or that form an integral

part of the crime charged are not covered under [Neb. Rev. Stat. §] 404(2).” Jd. (citing State v.

Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006)). Intrinsic evidence, or evidence necessary to

tell a complete story of the crime, is admissible to provide the context in which the crime

occurred. Jd. The key inquiry is whether the evidence is “so closely intertwined with the charged

crime that it completes the story or provides a total picture of that crime.” Jd. The district court

ruled that the gun was intrinsic evidence which formed the factual setting of the crime even though

the gun could not be definitively labeled the murder weapon. Jd. at 66-67. In support of its

decision, the district court found that a gun expert testified that a .44-caliber gun was used to kill

20

the murder victim and Nolan was found in possession of a .44-caliber gun 8 days after the

shooting. Jd. The court did agree with the district court explaining that although the evidence was

not conclusive, “it arguably provides a clearer picture of the crime.” Jd.

A year after Nolan was decided, the Supreme Court of Nebraska reviewed the inextricably

intertwined rule in State v. Ash. In Ash, the district court allowed evidence that Ash pawned the

murder victim’s jacked two days before the murder was committed. State v. Ash, 286 Neb 681,

693, 838 N.W.2d 273, 283 (2013). In reversing the district court’s decision, Supreme Court of

Nebraska explained:

“As our inextricably intertwined rule implies, courts may generally admit evidence

of criminal defendant’s uncharged bad act because exclusion would render the

evidence of the charged crime confusing or incomplete. It is the close entanglement

of the evidence that creates the need to present evidence of facts that are

consequential to proving the charged crime.”

Id. at 694-695, 838 N.W. 2d at 283. The court also looked to federal jurisdictions by explaining

that the rule applies “when both acts are part of a single criminal episode or when the other acts

were necessary preliminaries to the crime charged.” The court the reviewed when the intrinsic

evidence rule applied in the past and found it was upheld in the following circumstances:

(1) The defendant’s other bad acts showed his pattern of sexually abusing a child

or exposing the child to sexually explicit material; (2) the defendant destroyed

evidence of the crime soon afterward; (3) the defendant’s arrest for a different theft

resulted in the discovery of evidence of the charged theft, and the evidence

established that the items were stolen; and (4) the defendant was using a controlled

substance at the time the crime was committed.

21

Ash, 286 Neb. at 695, 838 N.W.2d at 283. The court found that none of the above fact patterns

were similar to Ash’s case. The theft of the victim’s jacket was not part of the factual setting for

murder, nor did it occur in the same immediate timeframe. Jd. Further, the court found that it was

not part of the same transaction as the murder, it was not a preliminary step in the murder, and it

was not a consequential fact to establish the murder. Jd. Instead, the court explained, it was

relevant to show motive, but since the State failed to offer the evidence in a hearing outside the

jury’s presence, the district court committed error in allowing its admittance. Jd. at 695, 838

N.W.2d at 283-284. The supreme court warned that Ash’s case specifically illustrates that

applying the inextricably intertwined exception too broadly would eviscerate the procedural

protections that apply to evidence presented under Neb. Rev. Stat. § 27-404(2). Jd. (emphasis

supplied). The court concluded that the district court abused its discretion in admitting evidence

of the theft under the inextricably intertwined exception. Jd.

As in Ash, none of the fact patterns, where the inextricably intertwined exception is used,

are similar to Ms. Cavitte’s case. The evidence in question does not involve allegations of sex

assault or abuse, it does not involve Ms. Cavitte allegedly destroying evidence of the crime soon

afterward, nor does the evidence allege that Ms. Cavitte was using a controlled substance at the

time the crime was committed. The admission by Ms. Cavitte that the past abuse in the relationship

was mutual was not part of the crime charged or a necessary preliminary to the crime charged.

Instead, the evidence admitted was clearly prior bad acts inadmissible under Neb. Rev. Stat. § 27-

404. The State even went so far as to argue in closing that the evidence was proof that Ms. Cavitte

was acting in conformity, by stating, “This is a relationship that, in [Ms. Cavitte’s] own words

with [Det.] Kreikemeier, has a history of 50/50 domestic abuse, beating on each other. And guess

what? You just heard the other side of that coin.” (439:24 - 440: 2). The admission of the bad

22

acts evidence is an abuse of discretion. Application of the intertwined exception in this case would

eviscerate the procedural protections provided under Neb. Rev. Stat. § 27-404. At the very least, a

hearing regarding their admissibility was required. The admission of these statements materially

affected Ms. Cavitte’s right to have a fair trial requiring a new trial.

Il.

THE DISTRICT COURT ERRED IN OVERRULLING APPELLANT’S MOTION

TO SUPPRESS AND IN ADMITTING EVIDENCE DURING TRIAL IN VIOLATION OF

APPELLANT’S RIGHTS UNDER THE FIFTH AMENDMENT OF THE US.

CONSTITUTION AND ARTICLE I, SECTION 7 OF THE NEBRASKA CONSTITUTION.

The district court erred in admitted statements in violation of Miranda. In its landmark

Miranda decision, The United States Supreme Court established safeguards whenever a person is

in custody and interrogated. State v. Williams, 26 Neb. App. 459, 490, 920 N.W.2d 868, 892,

(2018). It is undisputed that a person who is handcuffed and placed in a police cruiser’s back seat

is in custody. Jd. An interrogation includes express questioning, its functional equivalent, and any

police conduct that police officers ought to know is reasonably likely to elicit incriminating

responses. Jd. at 490-491. In this case, Ms. Cavitte’s Fifth Amendment rights were violated when

the district court admitted statements made before Miranda warnings were administered, because

the statements were the product of an unlawful two-step interrogation, because Det. Kreikemeier

failed to re-administer Miranda rights, and because her statements were not the product of a

knowing and intelligent waiver of her Miranda rights.

A. THE DISTRICT COURT ERRED IN ADMITTING MS. CAVITTE’S PRE-MIRANDA

STATEMENTS

23

In the instant case, the district court agreed that Ms. Cavitte was in custody and interrogated

for Miranda purposes. (T33). However, the district court incorrectly cites to State v. Juraneck, 287

Neb 846, 844 N.W.2d 791 (2014) as its authority in admitting the pre-Miranda statements. (T33).

In Juranek, the Supreme Court of Nebraska reviewed a series of Juranek’s statements made to

police officers. Among those statements, the court reviewed whether the admission of Juranek’s

pre-Miranda statements’ made in response to the single question, “Do you want to tell it to me?”

was a violation of Miranda. Id. at 854, 844 N.W.2d at 800. The court reasoned that at the time of

this specific statement, Juranek was in custody because he had been handcuffed, driven to the

police station in a cruiser, and placed in an interview room for interrogation. Jd. The court also

concluded that the detective should have known his question, “Do you want to tell it to me?” was

likely to elicit an incriminating response. Jd. 855, 844 N.W.2d at 801. Since the court found that

Juranek was in custody and interrogated before Miranda warnings were administered, the district

court erred in admitting this particular series of statements. Given that the district court in this

case erred in its interpretation of Juraneck and its correct conclusion that Ms. Cavitte was in fact

in custody while in the police cruiser and interrogated by Sgt. Baines before Miranda warnings

were administered, the district court’s admission of the statements is reversible error.

B. THE DISTRICT COURT ERRED IN ADMITTING MS. CAVITTE’S POST MIRANDA

STATEMENTS AS THEY WERE THE PRODUCT OF AN UNLAWFUL TWO-STEP

INTERROGATION.

An interrogation that has been the product of a two-step process where the unwarned

portion precedes the warned portion, both portions are inadmissible. When Miranda warnings are

inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and

deprive a defendant of knowledge essential to her ability to understand the nature of her rights and

24

the consequences of abandoning them. Juraneck, 287 Neb at 859, 844 N.W.2d at 803 (citing

Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601 (2004)). The threshold issue when officers

question first and warn later is thus whether it would be reasonable to find that in these

circumstances the warnings could function effectively as Miranda requires. Williams, 26 Neb.

App. at 493, 920 N.W.2d at 893. Where the warning is not effective to place an arrestee in a

position to make an informed choice to stop talking, there can be reason neither to accept the

warning as compliant with Miranda nor to treat the second stage of interrogation as separate from

the first, inadmissible stage. Jd. To determine whether a mid-interrogation Miranda warning is

sufficient to warrant the admission of post-Miranda statements, courts should consider five factors:

(1) the completeness and detail of the questions and answers in the first round of interrogation, (2)

the overlapping content of the two statements, (3) the timing and setting of the first and second,

(4) the continuity of police personnel, and (5) the degree to which the interrogator’s questions

treated the second round as continuous with the first. Id.

The initial questions posed by Sgt. Baines were intended to solicit incriminating responses,

and more importantly, they did produce incriminating statements. (E1,10: 10, located between

page 482-483). Sgt. Baines knew to cut off his interrogation and Mirandize Ms. Cavitte due to

these incriminating questions and responses. After Mirandizing Ms. Cavitte, Sgt. Baines reminds

Ms. Cavitte of what she said previously in order to get her to again repeat what she said in the first

part of the interrogation which is the type of police conduct specifically proscribed by the

court. (E1,10: 10, located between page 482-483). There was no actual break in the interrogations

conducted by Sgt. Baines. The content of the first interrogation with Sgt. Baines and second

interrogation with Det. Kreikemeier does overlap. In both, Ms. Cavitte admits there is a

disagreement where she admits culpability in hurting Mr. Cavitte. In both, officers begin the

25

interrogation by asking how she got her injuries. The two-step interrogation tactic used by Sgt.

Baines and Det. Kreikemeier misled Ms. Cavitte and deprived her of the knowledge essential to

her ability to understand the nature of her rights and the consequences of abandoning her rights--

all of which were exacerbated by her intoxication.

C. MS. CAVITTE’S FIFTH AMENDMENT RIGHTS WERE NOT KNOWINGLY,

INTELLIGENTLY, OR VOLUNTARILY WAIVED BECAUSE M/RANDA SHOULD HAVE

BEEN RE-ADMINISTERED.

After the first interrogation by Sgt. Baines, Det. Kreikemeier should have re-administered

Miranda warnings. In In re Miah S., the Supreme Court of Nebraska found that clearly, Miranda

warnings once given, cannot be accorded unlimited efficacy or perpetuity. 290 Neb 608, 611, 861

N.W.2d 406, 412 (2015). There is no exact time span or set of circumstances that will dictate

when Miranda needs to re-administered, instead the issue is determined by the totality of the

circumstances. Jd. at 612, 613. The Supreme Court of Nebraska held that initial warnings must be

re-administered if, “the circumstances changed so seriously that [the suspect's] answers no longer

were voluntary, or unless [the suspect] no longer was making a ‘knowing and intelligent

relinquishment or abandonment’ of her rights.” Jd. (citing Wyrick v. Fields, 459 U.S. 42, 47, 103

S.Ct. 394 (1982)). In this case, Miranda should have been re-administered given Ms. Cavitte’s

intoxication and the two hour time lapse from the Miranda advisory.

As the video clearly shows, Ms. Cavitte was intoxicated. (E2, 24: 24, located between page

482-483). The district court also concluded that Ms. Cavitte was intoxicated. (see T41) However,

the district court concluded that Miranda did not need to be re-administered because “Kreikemeier

asked Ms. Cavitte several times in the beginning of the interview whether she remember the

Miranda rights advisory form that Sgt. Baines administered in the police cruiser.” (T34). This

26

point is actually suggestive that Det. Kreikemeier should have re-administered the warnings

because Det. Kreikemeier needed to repeat himself several times and only once did Ms. Cavitte

actually agree that she remembered. (E2, 24: 24, located between page 482-483). The second time

Det. Kreikemeier asks if she recalls the rights advisory, two hours after the original advisory, Ms.

Cavitte actually responds irrationally, “If I recall am I going to jail?” (E2, 24: 24, located between

page 482-483).

During the hour and a half Ms. Cavitte was waiting in the interrogation room, you can see

Ms. Cavitte become still and lifeless with her head hung. (E2, 24: 24, located between page 482-

483). Clearly, Ms. Cavitte was passed out from intoxication during these instances. Det.

Kreikemeier also commented to Ms. Cavitte directly that he could tell that she had been drinking

and that he could smell it on her. (E2, 24: 24, located between page 482-483). Throughout the

second interrogation, Det. Kreikemeier constantly had to redirect Ms. Cavitte as she trails off topic

mumbling and slurring her words. (E2, 24: 24, located between page 482-483). Given Ms.

Cavitte’s level of intoxication, Det. Kreikemeier should have taken the time to re-administer her

Miranda warnings to ensure a knowing, intelligent, and voluntary waiver.

Overall, Det. Kreikemeier does not ask if she understood her rights, does not ask if she

remembers what the rights were, does not ask if she is willing to speak, does not remind her that

she has the right to remain silent, nor does he remind her of her right to speak to an attorney.

Instead he simply asks if Ms. Cavitte remembers the form. Under these instances, Det.

Kreikemeier should have known to terminate the interrogation but at the very least, should have

re-Mirandized Ms. Cavitte. Since he did not, her statement violates Miranda requirements and the

admissions of her statement warrants reversal of the district court’s decision to admit them.

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