CONNOLLY, J.
The State charged Robert B. Nave with numerous crimes, including first degree murder, criminal conspiracy, and two weapons charges. A jury found Nave guilty on all counts. The district court sentenced Nave to life in prison on the murder conviction and to 75 additional years for the other convictions. Nave argues we must reverse his convictions and sentences because: (1) The prosecutor improperly removed a prospective juror from the jury pool because of the juror's race, and (2) the police did not properly advise Nave of his Miranda rights. Nave also argues that the evidence was insufficient to sustain his criminal conspiracy conviction.
We conclude, however, that the prosecutor's reasons for striking the prospective juror were race neutral and, overall, persuasive. And although the Miranda warnings did not expressly state that Nave was entitled to appointed counsel before questioning, that information was obviously implied from the warnings which the police read to him. Finally, our review of the record also shows that a rational jury could properly find beyond a reasonable doubt all the essential elements of criminal conspiracy. We affirm Nave's convictions and sentences.
In major cities across the country, the Federal Bureau of Investigation (FBI) teamed up with local law enforcement agencies to combat gang activity and sales of illegal drugs and weapons. In Omaha, Nebraska, the FBI and the Omaha Police Department, with other agencies, formed the Greater Omaha Safe Streets Task Force (task force). The task force primarily targeted violent gangs and their members. This led to investigations of the gang members' activities, such as robberies and drug sales. This case involved an investigation, known as Operation "Sheepdog," and a failed drug buy on October 22, 2010.
Operation Sheepdog targeted several violent gangs in Omaha in an attempt to discover and shut down their drug suppliers. FBI Special Agent Gregory Beninato was in charge of the overall strategy for the operation. FBI Special Agent Paris Capalupo assisted Beninato in planning the operation. One part of the operation focused on drug buys at an automotive repair shop (auto shop), located at 24th and I Streets in Omaha. A confidential informant, Cesar Sanchez, owned the auto shop and allowed law enforcement to use it to conduct controlled drug buys. The FBI used another confidential informant, Jorge Palacios, to purchase drugs and weapons, sometimes together with Sanchez. Sanchez and Palacios were both used in the October 22, 2010, incident.
The record shows that surveillance of the auto shop, most notably on September
The task force was aware of the October 22, 2010, buy and planned to apprehend the individuals involved. Beninato held a briefing at 9 a.m. the day of the buy with task force members. The briefing provided the task force members with the essential information for the operation; for example, the targets, the overall plan, whether deadly force was authorized, and the proper medical response in case of emergency.
Following the briefing, Beninato and Capalupo met with their confidential informant, Palacios, sometime after 11 a.m., gave him money to purchase cocaine, and placed recording devices on his person. Then the task force members set up surveillance at different locations, with the majority of the members eventually ending up in the area around the auto shop at 24th and I Streets.
Beninato and Capalupo were watching the area from a van. Capalupo was driving, and Beninato was monitoring the radio traffic from other task force members and taking notes regarding their observations. The task force members were looking for the vehicles they had seen earlier in September — the Impala, Sebring, and Denali.
Capalupo testified that on October 22, 2010, he saw four African-American men "in proximity" to the Sebring. Capalupo saw McGuire, the driver of the Sebring, get out of the vehicle wearing all black and a baseball hat. Capalupo saw another man, Kim Thomas, get out of the back seat of the Sebring wearing a black, hooded sweatshirt with multicolored spots. Capalupo saw a third man nearby wearing a white, long-sleeved T-shirt with a khaki-colored shirt over it. Presumably, this man was Vann. And finally, both Beninato and Capalupo testified to seeing a fourth man, Nave, wearing a gray, hooded sweatshirt near the Sebring.
Capalupo testified that at about 1 p.m., he saw Nave pull his hood up, cinch it tight, and draw a pistol out of his waistband. Beninato saw Nave enter the auto shop. The agents broadcast this information over the radio and started to move toward the auto shop.
The only direct evidence as to what occurred inside the auto shop during the drug buy, both before and after Nave entered, was the testimony of Ayala-Martinez. He testified that Sanchez, Vann, and Palacios were all inside Sanchez' office during the drug buy. Ayala-Martinez gave the drugs to Sanchez, who then handed them to Vann. Vann made a telephone call, and 20 minutes later, McGuire entered the office. Vann gave the drugs to McGuire, and Vann and Palacios left. McGuire then left, but left the drugs on a nearby table. At this point, no money had been exchanged. Presumably, the men had left the office under the pretense of bringing back money to complete the sale.
About a minute later, Ayala-Martinez heard the front door of the shop open again. Sanchez apparently glanced out of
Beninato then saw Nave exit the shop, with his hood down and gun in hand. Beninato believed that Nave was running toward the Sebring. At that point, Nave began firing his weapon, apparently in the direction of Palacios, who was outside. Beninato broadcast a "shots fired" call over the radio and told everyone to close in on the auto shop. Nave, McGuire, and Thomas all got into the Sebring and fled, with task force members in pursuit.
But the suspects' flight was cut short when they crashed into a pickup truck at the intersection of 20th and I Streets. The police apprehended all three suspects and also arrested Ayala-Martinez. Following the arrests, Beninato learned that Sanchez had been shot. Sanchez later died from his wounds.
After Nave's arrest, law enforcement took him to a hospital because he had an elevated heart rate. Police then took Nave to the police station and placed him in an interview room around 8:30 or 9:30 p.m. About 5 or 6 hours later, at about 2:30 a.m., Officer Scott Warner began interviewing Nave. Warner read Nave his rights verbatim from the Omaha Police Department's prepared rights advisory form. Nave stated that he understood those rights and would speak with Warner. Warner then questioned Nave about his reasons for being in Omaha and how he came to be involved in the incident.
Nave attempted to answer those questions, but his answers served only to incriminate himself. Nave stated that he had nothing to do with the crime but that he had gone to a fast-food restaurant in the area around 8 or 8:30 that morning. Nave said that he ate at the restaurant, read the paper, and then was waiting for a bus to return home when he heard gunshots, saw his friend McGuire, and got into McGuire's car.
The record shows the fast-food restaurant that Nave said he went to was about 87 blocks south and 46 blocks east of where Nave was staying in Omaha. Nave also said he arrived at the restaurant around 8:30 a.m., but the record shows that the shooting occurred around 1 p.m. Nave said he just happened to see his friend McGuire and "dove" into his car when he heard gunshots. Nave denied knowing McGuire's full name and denied there being any conversation in the vehicle after he "dove" in. The State suggested in its case in chief and in closing arguments, persuasively, that this story was incredible and could not be believed.
Following its investigation, the State charged Nave with first degree murder, criminal conspiracy, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. Before trial, Nave moved to suppress evidence of his interrogation. Among other things, Nave alleged that Warner failed to fully advise him of his Miranda rights. The district court overruled the motion.
During jury selection, Nave made a Batson challenge, claiming that the prosecutor had impermissibly struck a prospective juror
Following trial, the jury found Nave guilty on all counts. The court sentenced Nave to life in prison on the murder conviction and an additional 75 years on the other convictions, to be served consecutively.
Nave assigns, renumbered and restated, that the district court erred as follows:
(1) Overruling Nave's Batson challenge because the prosecutor peremptorily struck a prospective juror because of the juror's race;
(2) overruling Nave's motion to suppress his interrogation because the State did not fully advise Nave of his Miranda rights; and
(3) accepting the jury verdict on the criminal conspiracy charge because the evidence was insufficient to support the conviction.
Nave argues that the prosecutor peremptorily struck a juror because he was African-American and that this action violated the Equal Protection Clause. But our review of the record shows that the prosecutor had valid nondiscriminatory reasons for the strike. We therefore find no merit to this assigned error.
We review de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law.
In Batson v. Kentucky,
Determining whether a prosecutor impermissibly struck a prospective juror based on race is a three-step process.
Here, the trial court determined that Nave had presented a prima facie case that the prosecutor had exercised the State's peremptory challenge because of the juror's race. The prosecutor then offered his reasons for the strike, which the trial court determined were race neutral and persuasive. On this basis, the trial court overruled Nave's Batson challenge.
Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has decided the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing is moot.
The initial question whether the prosecutor's reasons were race neutral is a question of law that we review de novo.
The prosecutor offered five reasons, restated, for his strike:
We conclude that these reasons, on their face, are racially neutral.
Moving on to the third and final step of the analysis, Nave must prove that the trial court clearly erred in finding no purposeful discrimination by the prosecutor. In support of that position, Nave argues that the prosecutor's reasons were not persuasive and were simply a pretext to hide the prosecutor's discriminatory intent to strike the juror because he was African-American.
The trial court, however, found that the prosecutor's reasons "form[ed] a persuasive basis for exercising [the State's] peremptory challenge, independent of race." And although the trial court did not go into great depth regarding why it found the prosecutor's reasons persuasive, we review its determination for clear error.
Our review of the record and evaluation of the prosecutor's reasons do not provide the "exceptional circumstances" necessary to reverse the trial court's determination. To be sure, not all of the prosecutor's reasons are particularly persuasive — why the juror's distrust of the media merits being stricken from the jury is unclear, considering that there was no evidence or testimony related to the news in any way. And we do not agree with the prosecutor that the juror's responses indicated that he did not give the proceedings the solemnity they deserved. On the contrary, the juror's responses and overall active participation in the jury selection process show that he took his civic duty seriously.
But we find the prosecutor's other stated reasons persuasive. The prosecutor indicated that he was concerned that the juror might distrust law enforcement which, of course, could be detrimental to the prosecutor's case because so many of his witnesses were law enforcement personnel. This concern stemmed from the juror's answer to a question during jury selection regarding feelings toward law enforcement. The juror explained, "Well, I think they, you know, protect and serve, but also I think there are some who, you know, abuse their own power so things can get twisted and turned around all the time. I mean, that's happened to me before." The juror explained further that he had been falsely accused and penalized for possession of marijuana and that he had to go through a diversion program.
We also find the prosecutor's other stated reasons persuasive. At the beginning of jury selection, the juror stated that he had a family vacation planned during the time of the trial, but that he could probably reschedule it to allow for jury duty. Even so, the prosecutor explained that he did not "want someone here who [was] going to be missing a family vacation just to sit on this jury." Contrary to Nave's assertion, we do not find this reason to be pretextual. The record shows that the prosecutor focused on already-planned events with other non-African-American prospective jurors, and whether it would work a hardship on the juror to miss them, or whether they could be rescheduled. In fact, the prosecutor originally moved to dismiss some of the jurors for cause because of planned events scheduled during the expected 2½-week trial. It appears from the record that the prosecutor did not move to strike the juror involved here for cause because he was amenable to rescheduling his vacation. But this does not mean that the prosecutor could not later peremptorily strike him for fear that missing his vacation could be a distraction during trial. The court was not clearly wrong in finding this reason persuasive.
The prosecutor was also concerned about the juror's approaching him during a break in jury selection, indicating he had something to say. The record shows that the judge, attorneys, and the juror met in the judge's chambers where the juror explained that he wanted to serve on the jury and that he wanted his voice to be heard. The juror noted that he was the only African-American male in the jury pool and that he thought a jury should include a multitude of races. The prosecutor explained that he had "never had a juror actually approach [him] to let [him] know that they [sic] wanted to serve on a long jury case" and, essentially, that it made the prosecutor uneasy and concerned that the juror might have some hidden agenda. The prosecutor's concern was plausible, and the burden rests on Nave to show a discriminatory purpose.
We also note that both the U.S. Supreme Court and this court have considered the relative number or percentage of African-American jurors peremptorily struck to evaluate whether a prosecutor's stated reasons for a strike were pretextual. For example, in Miller-El v. Dretke,
And in State v. Gutierrez,
Here, the prosecutor peremptorily challenged only two of the four prospective African-American jurors — one of which Nave admitted was proper. Additionally, one African-American individual served on the jury, and Nave struck the other prospective African-American juror. These facts indicate that the prosecutor's reasons for striking the juror were not pretextual.
We conclude that the district court did not clearly err in overruling Nave's Batson challenge.
Warner interrogated Nave after his arrest. Warner asked Nave his name and address and then read Nave his Miranda rights from the Omaha Police Department's printed "Rights Advisory Form," which consisted of six separate statements:
Warner read these rights to Nave verbatim from the form. Nave responded that he understood each statement, and Warner recorded his responses on the form.
Nave argues that the above warnings were deficient because they failed to fully advise him of his Miranda rights and that therefore the court should have suppressed his statements made during the subsequent interrogation. Specifically, Nave claims that the police did not inform him that he had a right to appointed counsel both before and during interrogation and that the police did not inform him that he could exercise that right at any time. But because the warnings provided are sufficient under Miranda v. Arizona,
In reviewing a motion to suppress a statement based on its claimed involuntariness — including claims that law enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda — we apply a two-part standard of review. Regarding historical facts, we review the trial court's findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which we review independently of the trial court's determination.
In Miranda, the U.S. Supreme Court sought to ensure that the Fifth Amendment privilege against compelled self-incrimination was protected from the inherently compelling pressures of custodial interrogation.
We recognize that Miranda contains language to support Nave's argument. For example, at one point the Court explains that "if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation."
Since Miranda, though, the Court has repeatedly emphasized that while the particular rights delineated under that decision are absolute, the language used to apprise suspects of those rights is not. In California v. Prysock,
Nonetheless, Nave argues that the warning must expressly indicate that an indigent's right to counsel applies both before and during interrogation. Nave cites to two Arkansas cases for support, but neither is on point. In Wilkerson v. State,
Our research, however, reveals some support, though slight, for Nave's position. For example, in U.S. v. Wysinger,
And as stated earlier, there is some support for Nave's position in the language of Miranda itself.
But we are not persuaded. Other courts which have addressed this exact issue under similar factual circumstances have found the warnings to be sufficient.
In addition, our case law supports the conclusion that these warnings were adequate. In State v. Bauldwin,
We conclude that the officer's failure to expressly state that Nave was entitled to appointed counsel before questioning was immaterial. When police told Nave that he had "the right to consult with a lawyer and have the lawyer with [him] during the questioning," that statement impliedly included the right to consult with the lawyer before the questioning. And that is enough under Miranda.
Finally, Nave also apparently argues that the warnings were defective for failing to inform Nave that he could exercise his right to counsel at any time. Although a suspect can exercise his Miranda rights at any point during custodial interrogation,
Nave argues that there is insufficient evidence to support his conviction for criminal conspiracy. Specifically, Nave argues that outside of Nave's admitting he knew McGuire, there was no evidence linking Nave to the other actors involved in these events. But our review of the record shows otherwise, and a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. This assigned error has no merit.
When reviewing the sufficiency of the evidence to support a conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
The State charged Nave with criminal conspiracy; specifically, that he conspired to commit the crime of unlawful possession with intent to distribute a controlled substance. A person is guilty of criminal conspiracy if the person intends to promote or facilitate the commission of a felony, agrees with one or more persons to commit that felony, and then the person, or a coconspirator, commits an overt act furthering the conspiracy.
The State claimed that Nave conspired to possess and then distribute cocaine. In relevant part, Neb.Rev.Stat. § 28-416 (Cum.Supp.2010) makes it unlawful "for any person knowingly or intentionally ... [t]o manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance." Cocaine is a controlled substance.
A rational jury could conclude beyond a reasonable doubt that Nave intended to promote or facilitate the crime. Nave stipulated that chemical tests of his hands on October 22, 2010, came back positive for cocaine. Ayala-Martinez testified that Nave came into the auto shop, shot Sanchez, and then asked where the drugs were. Ayala-Martinez testified that Nave grabbed the kilogram of cocaine and left. Beninato testified that as Nave ran out of the auto shop, a white powder, later identified as cocaine, was found in a trail from the shop to where he saw Nave get in the Sebring. Law enforcement later searched the Sebring and found a brick of cocaine, weighing about 900 grams, in the back seat. From these facts, a rational jury could conclude that Nave had possessed cocaine.
A rational jury could also find beyond a reasonable doubt that Nave not only possessed the cocaine, but that he intended to distribute it. The quantity of drugs possessed is relevant to this inquiry.
But Nave argues that there is no evidence to show that he agreed with others to commit the crime and that therefore, he could not be guilty of conspiracy. But the record contradicts that assertion. Nave got into the same car as McGuire and Thomas, immediately after the crime took place. Before the theft of the cocaine, law enforcement surveillance described the four individuals — Nave, Vann, McGuire, and Thomas — as being "in proximity" to each other and the Sebring. One witness also testified that Vann and Thomas had been whispering back and forth near the
Furthermore, the fact that Nave entered the auto shop specifically demanding the drugs indicates that he was working with the other individuals. Although McGuire and Vann had purchased drugs from Sanchez through Ayala-Martinez before, there is no evidence that Nave was involved in the prior deal. If Nave had not been conspiring with the others to steal and eventually distribute the cocaine, then he likely would not have known that the October 22, 2010, drug buy was going to take place. These facts presented sufficient evidence for a jury to conclude beyond a reasonable doubt that Nave worked with others to commit the crime.
Finally, a rational jury could obviously conclude beyond a reasonable doubt that Nave's actions constituted an "overt act" in furtherance of the conspiracy. As such, the evidence is sufficient to uphold Nave's conviction for criminal conspiracy.
We affirm Nave's convictions and sentences.
AFFIRMED.
HEAVICAN, C.J., not participating.