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09/23/2016 08:09 AM CDT




                                                         - 832 -
                                  Nebraska Supreme Court A dvance Sheets
                                          294 Nebraska R eports
                                                 STATE v. MITCHELL
                                                  Cite as 294 Neb. 832




                                        State of Nebraska, appellee, v.
                                        Travis T. Mitchell, appellant.
                                                    ___ N.W.2d ___

                                        Filed September 23, 2016.   No. S-15-086.

                1.	 Motions for Mistrial: Appeal and Error. The decision whether to
                    grant a motion for mistrial will not be disturbed on appeal in the absence
                    of an abuse of discretion.
                2.	 Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial
                    is properly granted in a criminal case where an event occurs during the
                    course of a trial that is of such a nature that its damaging effect cannot
                    be removed by proper admonition or instruction to the jury and thus
                    prevents a fair trial.
                3.	 Trial: Testimony: Constitutional Law: Arrests: Impeachment. A
                    defendant waives his or her Fifth Amendment protections when the
                    defendant takes the stand and testifies which, in turn, allows his or her
                    prearrest silence to be used for impeachment.
                4.	 Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is
                    prejudicial depends largely on the context of the trial as a whole.
                5.	 Trial: Prosecuting Attorneys: Appeal and Error. In determining
                    whether a prosecutor’s improper conduct prejudiced the defendant’s
                    right to a fair trial, an appellate court considers the following factors:
                    (1) the degree to which the prosecutor’s conduct or remarks tended to
                    mislead or unduly influence the jury; (2) whether the conduct or remarks
                    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.
                6.	 Trial: Prosecuting Attorneys. When a prosecutor’s comments rest on
                    reasonably drawn inferences from the evidence, he or she is permitted to
                    present a spirited summation that a defense theory is illogical or unsup-
                    ported by the evidence and to highlight the relative believability of wit-
                    nesses for the State and the defense.
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             Nebraska Supreme Court A dvance Sheets
                     294 Nebraska R eports
                             STATE v. MITCHELL
                              Cite as 294 Neb. 832

 7.	 Motions for Mistrial: Motions to Strike: Proof: Appeal and Error.
     Error cannot ordinarily be predicated on the failure to grant a mistrial if
     an objection or motion to strike the improper material is sustained and
     the jury is admonished to disregard such material.

   Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Irwin and Inbody, Judges, on appeal
thereto from the District Court for Lancaster County, John A.
Colborn, Judge. Judgment of Court of Appeals affirmed.
  Joseph D. Nigro, Lancaster County Public Defender,
Christopher Eickholt, and Nathan J. Sohriakoff for appellant.
  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
   K elch, J.
                        INTRODUCTION
   Travis T. Mitchell was convicted of driving under the influ-
ence (DUI), fourth offense, with refusal to submit to a chemi-
cal test, and for driving during revocation. The Nebraska Court
of Appeals affirmed, see State v. Mitchell, 23 Neb. App. 657,
876 N.W.2d 1 (2016), and we granted Mitchell’s petition for
further review. Mitchell argues that the district court erred in
overruling his motion for mistrial based on the prosecutor’s
comments to the jury during closing arguments concerning
Mitchell’s postarrest, pre-Miranda silence. We affirm the judg-
ment of the Court of Appeals that affirmed Mitchell’s convic-
tions and sentences.
                      BACKGROUND
  On June 6, 2014, after a vehicular pursuit in Lincoln,
Nebraska, police apprehended Mitchell in front of his resi-
dence. The State charged Mitchell with DUI with refusal to
submit to a chemical test and with driving during revocation,
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                        STATE v. MITCHELL
                         Cite as 294 Neb. 832

and the district court conducted a jury trial. Mitchell elected
not to testify.
   Three different officers observed Mitchell’s driving before
he returned home and was arrested. All three officers testified
at Mitchell’s trial, and based on their experience and observa-
tions, all three opined Mitchell showed signs that he was driv-
ing while under the influence of alcohol.
   Officer Sarah Williams testified that she was in her cruiser
and observed Mitchell’s vehicle first, heading northbound on
70th Street; she identified the driver as Mitchell. Williams tried
to follow Mitchell, but he was driving erratically, using the
middle turn lane to pass other vehicles at a high rate of speed.
Williams testified that the speed limit in that area was 35 miles
per hour and that Mitchell was traveling 50 miles per hour
or more. According to Williams, Mitchell’s maneuvers were
consistent with someone driving while under the influence of
alcohol. Williams testified that she slowed down, because con-
tinuing to follow Mitchell would have been unsafe.
   Officer James Quandt testified that he observed Mitchell’s
vehicle stop at the traffic light at the intersection of 70th and A
Streets. Quandt identified the driver of the vehicle as Mitchell.
Quandt testified that he witnessed Mitchell’s vehicle speed,
change lanes, and run a red light at Wedgewood Drive and
70th Street. Thereafter, Quandt lost sight of Mitchell’s vehicle,
but radioed to other officers that Mitchell was northbound and
might be headed to his home.
   Officer Joseph Keiser testified that he witnessed Mitchell
pull into a driveway at a high rate of speed. Keiser noticed
the driver’s side tires go up onto the grass, “half missing”
the driveway, before the vehicle came to a stop. Keiser then
approached Mitchell’s vehicle and proceeded to conduct a
search, which revealed five cans of beer, with at least one can
open, and an open bottle of liquor. Keiser also testified at trial
that he could smell alcohol on Mitchell. Based on the odor of
alcohol, Mitchell’s actions, and his manner of driving, Keiser
opined that Mitchell was under the influence of alcohol.
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. MITCHELL
                        Cite as 294 Neb. 832

   Quandt later arrived at Mitchell’s home, where he encoun-
tered Keiser. Quandt testified that he also observed an odor of
alcohol on Mitchell. Quandt testified that Mitchell was stagger-
ing as he walked and had difficulty balancing, that Mitchell’s
eyes were bloodshot, and that his speech was slightly slurred.
Quandt testified that based on these observations and his train-
ing and experience in “a thousand or more” DUI investiga-
tions, he believed Mitchell was under the influence of alcohol.
Quandt further opined that Mitchell could not safely operate
a motor vehicle at that time and that driving behavior like
Mitchell’s can be a sign that a person is under the influence of
alcohol. Quandt testified that Mitchell was arrested for driv-
ing under revocation. After conducting a DUI investigation
of the scene, Quandt transported Mitchell to the Lancaster
County jail.
   Quandt testified that while en route to the jail, Mitchell
repeatedly stated that he should not be under arrest, because
police did not catch him driving. The district court received,
and the jury listened to, an audio recording of the trip to the
jail. Mitchell did not deny or affirmatively state that he had
been drinking alcohol, and Quandt did not question him about
the matter. Quandt testified that at the jail, Mitchell refused
to submit to a chemical test. According to Quandt’s testi-
mony from an earlier hearing outside the presence of the jury,
Mitchell received Miranda warnings sometime after he refused
the chemical test, but there was no evidence at trial about
Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
   During closing statements, the State argued:
      Mitchell never says, I’m not drunk. I wasn’t drinking.
      Why are you arresting me for [DUI], I’m not drunk. What
      he says is, “You didn’t catch me driving. You didn’t arrest
      me in my truck.” And later, “You didn’t breathalyze me
      in my car.” Never once does he say he’s not drunk. It’s
      all about where you got me. He never denied that he’s
      drunk . . . .
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. MITCHELL
                        Cite as 294 Neb. 832

Mitchell’s counsel objected and moved for a mistrial. The
court did not specifically rule on Mitchell’s motion for mistrial
but instructed the jury to disregard the State’s comments about
what Mitchell did or did not deny.
   The jury found Mitchell guilty of DUI with refusal to submit
to a chemical test and of driving during revocation. Following
an enhancement hearing concerning Mitchell’s multiple DUI
convictions, the district court sentenced Mitchell to 5 to 10
years’ imprisonment and revoked his driving privileges for
15 years.
   Mitchell appealed to the Court of Appeals, assigning,
among other things, that the district court erred when it
overruled his motion for mistrial based on the prosecutor’s
comment during closing argument that Mitchell did not deny
being intoxicated. The Court of Appeals affirmed the convic-
tions and sentences, determining that Mitchell had not suf-
fered actual prejudice as a result of the trial court’s denial of
his motion for mistrial. See State v. Mitchell, 23 Neb. App.
657, 876 N.W.2d 1 (2016).
   We granted Mitchell’s petition for further review.
                  ASSIGNMENT OF ERROR
   In his petition for further review, Mitchell assigns that the
Court of Appeals erred by failing to find that the district court
should have declared a mistrial because the State violated due
process and the Nebraska and U.S. Constitutions by inappro-
priately commenting during closing arguments on Mitchell’s
pretrial silence.
                   STANDARD OF REVIEW
   [1] The decision whether to grant a motion for mistrial will
not be disturbed on appeal in the absence of an abuse of discre-
tion. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
                          ANALYSIS
   At trial, the jury heard evidence that Mitchell made unso-
licited postarrest, pre-Miranda statements during the ride to
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                        STATE v. MITCHELL
                         Cite as 294 Neb. 832

the jail, in which he repeatedly volunteered that he should not
be under arrest because police did not catch him driving. The
instant appeal centers on the prosecutor’s subsequent state-
ments during closing arguments, which merit repetition:
       Mitchell never says, I’m not drunk. I wasn’t drinking.
       Why are you arresting me for [DUI], I’m not drunk. What
       he says is, “You didn’t catch me driving. You didn’t arrest
       me in my truck.” And later, “You didn’t breathalyze me
       in my car.” Never once does he say he’s not drunk. It’s
       all about where you got me. He never denied that he’s
       drunk . . . .
The district court did not specifically rule on Mitchell’s motion
for mistrial but did admonish the jury to disregard the com-
ments of the prosecutor. We interpret this as implicitly overrul-
ing the motion for mistrial.
   [2] Mitchell assigns that the Court of Appeals erred by
failing to find that the district court ought to have declared a
mistrial. A mistrial is properly granted in a criminal case where
an event occurs during the course of a trial that is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
The defendant must prove that the alleged error actually preju-
diced him or her, rather than creating only the possibility of
prejudice. State v. Daly, supra.
   [3] Mitchell asserts that because he did not testify at trial,
and subject himself to cross-examination, he did not waive any
right concerning the use of his postarrest, pre-Miranda silence.
See Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L.
Ed. 2d 86 (1980) (defendant waives his Fifth Amendment pro-
tections when he takes stand and testifies which, in turn, allows
his prearrest silence to be used for impeachment).
   The Court of Appeals, in examining the prosecutor’s clos-
ing remarks about Mitchell’s postarrest, pre-Miranda silence,
relied upon U.S. v. Frazier, 408 F.3d 1102 (8th Cir. 2005).
In Frazier, during the State’s case in chief, the prosecutor
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. MITCHELL
                        Cite as 294 Neb. 832

questioned the arresting officer about the defendant’s reaction
to the arrest and about the complete silence of the defend­
ant during the process of arrest. This observation of silence
occurred after the defendant had been arrested but prior to
being read his Miranda rights. The Eighth Circuit stated that
“[a]lthough [the defendant] was under arrest, there was no gov-
ernmental action at that point inducing his silence,” because
he had not yet been read his Miranda rights. 408 F.3d at 1111.
The Frazier court therefore concluded that the government
could utilize the defendant’s postarrest, pre-Miranda silence as
substantive evidence of his guilt.
   The Court of Appeals found that the principle in Frazier
applied “equally to impeachment use of silence as to the use of
silence as substantive evidence of a defendant’s guilt” and that
“[b]ecause his silence occurred pre-Miranda, the prosecutor’s
comment utilizing Mitchell’s silence as evidence of his guilt
was not improper.” State v. Mitchell, 23 Neb. App. 657, 670,
876 N.W.2d 1, 11-12 (2016).
   However, Mitchell argues (1) that the Court of Appeals
incorrectly relied on Frazier, because that court narrowly
tailored its opinion to the specific facts present in that case,
and (2) that the decision in Frazier is not consistent with U.S.
Supreme Court precedent in Doyle v. Ohio, 426 U.S. 610, 96
S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Wainwright v. Greenfield,
474 U.S. 284, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986); and
Jenkins v. Anderson, supra.
   Mitchell is partially correct in that the court in Frazier did
limit its holding to “the facts before” it and further stated,
“We are speaking in this case only of the defendant’s silence
during and just after his arrest.” U.S. v. Frazier, 408 F.3d at
1111. Despite Fraizer’s limited holding, the Court of Appeals
used it as guidance in evaluating the closing remarks in this
case and in resolving the ultimate issue it presents: whether
the comments were overly prejudicial, resulting in an unfair
trial. See, State v. Dixon, supra; State v. Daly, 278 Neb. 903,
775 N.W.2d 47 (2009).
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. MITCHELL
                        Cite as 294 Neb. 832

   In addition, Mitchell cites U.S. v. Moore, 104 F.3d 377
(D.C. Cir. 1997), where the court found that the prosecutor’s
closing comments regarding the defendant’s postarrest, pre-
Miranda silence violated his Fifth Amendment right against
self-­incrimination. In Moore, the defendant did not testify at
trial and the prosecution not only commented on the defend­
ant’s postarrest, pre-Miranda silence in closing but also pre-
sented such evidence during its case in chief. As a result, the
court found that “a prosecutor’s comment on a defendant’s
post-custodial silence unduly burdens that defendant’s Fifth
Amendment right to remain silent at trial, as it calls a jury’s
further attention to the fact that he has not arisen to remove
whatever taint the pretrial but post-custodial silence may have
spread.” 104 F.3d at 385. Mitchell also points out that other
courts have agreed with Moore. See, U.S. v. Hernandez, 948
F.2d 316 (7th Cir. 1991); U.S. v. Velarde-Gomez, 269 F.3d 1023
(9th Cir. 2001) (en banc).
   A distinguishing factor separating Mitchell’s case from
Moore is that the Moore court, in discussing a defendant’s
absolute right to remain silent, recognized that “[w]hile a
defendant who chooses to volunteer an unsolicited admission
or statement to police before questioning may be held to have
waived the protection of that right, the defendant who stands
silent must be treated as having asserted it.” 104 F.3d at 385.
Here, Mitchell volunteered statements prior to Miranda warn-
ings being given and those statements were presented to the
jury. This is not a case where a defendant remained silent at
all times, which, under Moore, would constitute an assertion of
the Fifth Amendment right against self-incrimination. In light
of Mitchell’s unsolicited statements, it is arguable whether
these facts present a situation where Mitchell’s postarrest, pre-
Miranda silence is at issue.
   [4,5] But even assuming that Mitchell had asserted his Fifth
Amendment rights through his partial inferred silence and
that, as Mitchell claims, the prosecutor’s comments rose to the
level of improper conduct during closing argument, it would
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                       STATE v. MITCHELL
                        Cite as 294 Neb. 832

still be necessary to determine whether Mitchell’s right to a
fair trial was prejudiced. See State v. Dubray, 289 Neb. 208,
854 N.W.2d 584 (2014). Whether prosecutorial misconduct
is prejudicial depends largely on the context of the trial as a
whole. Id. We consider the following factors: (1) the degree
to which the prosecutor’s conduct or remarks tended to mis-
lead or unduly influence the jury; (2) whether the conduct or
remarks were extensive or isolated; (3) whether defense coun-
sel invited the remarks; (4) whether the court provided a cura-
tive instruction; and (5) the strength of the evidence supporting
the conviction. Id.
   While this court is concerned about the prosecutor’s com-
ments because they had the potential to mislead the jury,
we must weigh any prejudicial effect in view of the overall
circumstances of this case. See id. Here, the comments were
isolated to closing argument. Further, in this instance, the
degree to which the prosecutor’s remarks tended to mislead
is intertwined with the strength of the evidence supporting
Mitchell’s conviction. The evidence reflects that Mitchell
illegally drove in the middle lane passing cars at a high rate
of speed, endangered other drivers, and drove off the road-
way. Additionally, three different officers observed Mitchell’s
driving and each opined that Mitchell showed signs of driv-
ing while under the influence of alcohol. Thus, the evidence
within the State’s case in chief overwhelmingly supported
Mitchell’s conviction.
   [6] Moreover, we observe that Mitchell’s state of intoxi-
cation was relevant in closing argument. Mitchell himself
raised the issue of whether he was intoxicated in opening
statements when counsel stated, “And while he was driving
on a license that was revoked, he was not driving under the
influence.” Still, the prosecutor’s comments that “Mitchell
never says, I’m not drunk. I wasn’t drinking” were not based
upon evidence directly adduced during the trial. Arguably, the
prosecutor based the comments upon a reasonable inference
from Mitchell’s volunteered statements. When a prosecutor’s
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                        STATE v. MITCHELL
                         Cite as 294 Neb. 832

comments rest on reasonably drawn inferences from the evi-
dence, he or she is permitted to present a spirited summation
that a defense theory is illogical or unsupported by the evi-
dence and to highlight the relative believability of witnesses
for the State and the defense. State v. Dubray, supra.
   [7] Additionally, in the instant case, although the district
court did not specifically rule on Mitchell’s motion for mis-
trial, it did provide a curative instruction by admonishing the
jury to disregard the prosecutor’s comments. And error cannot
ordinarily be predicated on the failure to grant a mistrial if an
objection or motion to strike the improper material is sustained
and the jury is admonished to disregard such material. State v.
Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
   After weighing the above factors, we find that although the
prosecutor’s closing remarks about Mitchell’s postarrest, pre-
Miranda silence are questionable under these facts, they did
not prejudice his right to a fair trial. As a result, we find no
abuse of discretion by the district court in implicitly overruling
Mitchell’s motion for mistrial.
                        CONCLUSION
  For the reasons set forth above, we affirm the decision of the
Court of Appeals.
                                                    A ffirmed.
