                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. BATES


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                                  KEVIN J. BATES, APPELLANT.


                          Filed November 17, 2015.    No. A-14-1081.


       Appeal from the District Court for Dawson County: JAMES E. DOYLE IV, Judge. Affirmed.
       James R. Mowbray and Kelly S. Breen, of Nebraska Commission on Public Advocacy, for
appellant.
       Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.



       PIRTLE, RIEDMANN, and BISHOP, Judges.
       RIEDMANN, Judge.
                                       INTRODUCTION
        Kevin J. Bates was convicted in the Dawson County District Court of second degree
assault, third degree domestic assault, and criminal mischief. He appeals his conviction and
sentence of second degree assault, claiming that the district court committed plain error when it
allowed a witness to invoke his right against self-incrimination in front of the jury and that he
received ineffective assistance of counsel. We find that allowing the invocation in the jury’s
presence was erroneous, but such error was harmless beyond a reasonable doubt. We also conclude
that Bates’ trial counsel was not ineffective. We therefore affirm the conviction and sentence.




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                                        BACKGROUND
        On February 8, 2014, Melissa Callahan, Bates’ then girlfriend, went to visit Bates, who
was working at his parents’ farm. Bates entered Callahan’s vehicle and an argument ensued.
Callahan claims they argued because she asked him to close the door because she was cold; Bates
says he became upset when he noticed “track marks” on Callahan’s arm, which he assumed meant
she was using methamphetamine (meth) again. Callahan also claims that Bates assaulted her in the
vehicle, which Bates denies.
        Bates and Callahan were sitting in a vehicle in Bates’ parents’ driveway when Callahan’s
friend, Eswin Lopez-Bravo, arrived. Callahan testified at trial that Bates exited the vehicle and
approached Lopez-Bravo’s car while she waited. She said the men talked briefly and then Bates
began punching Lopez-Bravo. Bates, however, claimed that Callahan got out of the vehicle to talk
to Lopez-Bravo while he stayed behind. Bates said Callahan and Lopez-Bravo started arguing over
what he thought was money. According to Bates, Lopez-Bravo grabbed Callahan, so Bates got out
of the vehicle to intervene. Bates saw what he thought was a bag of meth in Lopez-Bravo’s hand.
Bates claimed that Lopez-Bravo then hit him on the side of the head, so Bates swung back and
punched him three times. Bates also punched out the window of Lopez-Bravo’s vehicle.
        Prior to trial, the State filed a motion in limine asking the court to prohibit Bates from
offering testimony or evidence concerning the use or possession of illegal drugs by Callahan or
Lopez-Bravo. At a hearing on the motion, Bates argued that the ability to refer to the use of meth
was necessary because his theory was that the incident on February 8, 2014 was a drug deal or
collection of money that went wrong. He claimed that the relationship between Callahan and
Lopez-Bravo was based almost completely on the use of meth, and they admitted at their
depositions to using meth together. The district court granted the motion in part, ruling that Bates
was prohibited from inquiring into Callahan’s and Lopez-Bravo’s prior use of drugs; however, he
was not forbidden from adducing evidence that at the time of the occurrences either witness was
in the possession of drugs as observed by a witness.
        At trial, the State called Lopez-Bravo as a witness. Immediately upon his taking the stand
and providing his name, Bates asked that the court advise Lopez-Bravo of his Fifth Amendment
right against self-incrimination. The court declined to do so at the time, indicating that it would
wait to do so until the issue was raised by a question. Lopez-Bravo was then questioned by the
State and answered all of the questions posed to him on direct examination. The State did not
inquire into any meth use by Lopez-Bravo.
        During cross-examination, however, Bates began questioning Lopez-Bravo about meth.
Lopez-Bravo denied going to Bates’ parents’ residence to deliver drugs to Callahan and denied
hiding drugs on the property. Lopez-Bravo admitted that he was under the influence of meth on
February 8, 2014 and had smoked meth 3 days before trial. Bates’ counsel then asked Lopez-Bravo
who he smoked meth with 3 days prior, and the court interjected and advised Lopez-Bravo of his
Fifth Amendment right to remain silent and avoid self-incrimination. The court then sustained the
State’s relevance objection to the question. Bates continued cross-examining Lopez-Bravo on
other topics and then asked if he deals or sells meth. The court again advised Lopez-Bravo that if
he answers the question, he may be providing information to the State that could be used to




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prosecute him and that he has a right to remain silent. As a result, Lopez-Bravo invoked his right
to remain silent. Bates then stated that he had no further questions for the witness.
        The jury ultimately found Bates guilty of second degree assault, third degree domestic
assault, and criminal mischief. The district court found that the domestic assault was a second
offense and that Bates was a habitual criminal. Bates was sentenced to consecutive sentences of
18 to 20 years, 20 months to 60 months, and 90 days. He timely appeals his conviction and sentence
as to the second degree assault aggravated upon a habitual criminal count only.
                                    ASSIGNMENTS OF ERROR
        Bates assigns that (1) the district court committed plain error by permitting Lopez-Bravo
to invoke his Fifth Amendment privilege against self-incrimination in the presence of the jury and
(2) he received ineffective assistance of counsel.
                                              ANALYSIS
Invocation of Fifth Amendment Privilege.
          Bates challenges the district court’s decision to allow Lopez-Bravo to invoke his right
against self-incrimination in the presence of the jury. He recognizes that because he failed to object
at trial, we are limited to a review for plain error.
          Failure to make a timely objection waives the right to assert prejudicial error on appeal.
State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012). However, an appellate court may, at its
option, notice plain error. See id. Plain error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness
of the judicial process. Id.
          The Nebraska Evidence Rules, contained in chapter 27 of the Nebraska Revised Statutes,
as well as our case law interpreting those rules, direct trial courts to avoid a jury’s exposure to a
witness’ claim of privilege whenever possible. See State v. Draper, 289 Neb. 777, 857 N.W.2d
334 (2015). Section 27-513(2) provides that “proceedings shall be conducted, to the extent
practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.”
Absent extraordinary circumstances, trial courts should exercise their discretion to forbid parties
from calling witnesses who, when called, will only invoke a privilege. State v. Draper, supra.
          In the present case, the district court was made aware of the intent to question Lopez-Bravo
regarding meth, and thus, it was aware that the witness may need to invoke his right against
self-incrimination. Nevertheless, the court did not definitively determine, outside the jury’s
presence, whether he would invoke such right. Even after Lopez-Bravo took the stand at trial and
was sworn in, the court declined to address the issue until it was raised during questioning. It would
have been practicable to determine whether and to what extent Lopez-Bravo intended to remain
silent outside the jury’s presence. Because such a determination was not made, allowing the
invocation of privilege in front of the jury violated § 27-513(2). The State agrees.
          However, not all trial errors, even trial errors of constitutional magnitude, entitle a criminal
defendant to the reversal of an adverse trial result. State v. Draper, supra. When determining
whether an alleged error is so prejudicial as to justify reversal, courts generally consider whether
the error, in light of the totality of the record, influenced the outcome of the case. Id. It is only



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prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt,
which requires that a conviction be set aside. Id.
        In Draper, the Supreme Court found error in allowing a witness to invoke her right to
remain silent in the presence of the jury. In addressing whether the error was nevertheless harmless,
the court adopted the analysis from Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10
L.Ed.2d 278 (1963), which described 2 circumstances when the prosecutor’s calling a witness to
the stand with the knowledge that the witness would invoke the privilege against self-incrimination
constituted reversible error. The first category was based upon prosecutorial misconduct and
involved situations when the prosecution makes a conscious and flagrant attempt to build its case
out of inferences arising from use of the testimonial privilege. That is not the case here. There is
no evidence the State was attempting to build its case out of inferences from use of the privilege.
The State called Lopez-Bravo to the stand in order to ascertain his non-privileged testimony as a
fact witness and victim of Bates’ assault.
        The second category involves cases in which inferences from a witness’ refusal to answer
added critical weight to the State’s case in a form not subject to cross-examination. See State v.
Draper, 289 Neb. 777, 857 N.W.2d 334 (2015). In addressing this prong, appellate courts are to
consider the invocation of the privilege within the entire context of the case and other evidence
presented to the jury. See id. Other factors to be considered are whether the State knew the witness
would invoke the privilege, the number of questions that elicit an assertion of the privilege,
whether the inferences are merely cumulative of other evidence, whether the inferences relate to
central or collateral matters, whether either side attempted to draw adverse inferences in closing
argument or at any other time during trial, and whether the jury was instructed not to draw an
inference from the witness’ refusal to testify. Id.
        In the present case, Lopez-Bravo answered all of the questions asked of him on direct
examination, and Bates was not prohibited from cross-examining him as to his testimony. The
privilege was invoked on only one occasion during cross-examination when Bates’ counsel asked
Lopez-Bravo whether he deals or sells meth.
        The purpose of § 27-513(2) is to prevent the jury from drawing an unfavorable inference
from a witness’ assertion of privilege. See id. The inference the jury could draw from
Lopez-Bravo’s invocation of his right to remain silent was that he is, in fact, a drug dealer, an
inference that would tend to discredit him and work in Bates’ favor. More importantly, this
inference would support Bates’ position that Lopez-Bravo and Callahan were arguing about drug
money and the fight occurred because Bates was defending Callahan and himself. Thus, the
inference from Lopez-Bravo’s refusal to answer that single question did not add “critical weight”
to the State’s case in a form not subject to cross-examination and was not prejudicial to Bates.
Accordingly, we find that the error in allowing Lopez-Bravo to invoke his right to remain silent in
the presence of the jury is harmless beyond a reasonable doubt.
        Bates also asserts that allowing Lopez-Bravo to invoke his right to remain silent in the
presence of the jury violated his Sixth Amendment right to confrontation and cross-examination.
The Confrontation Clauses of U.S. Const. amend. VI and Neb. Const. art. I, § 11, guarantee the
right of an accused in a criminal prosecution to be confronted with the witnesses against him or
her. The purpose of the right of confrontation is primarily to guarantee a right for the accused to



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cross-examine witnesses against him or her. State v. Draper, 289 Neb. 777, 857 N.W.2d 334
(2015).
        The Nebraska Supreme Court has found these rights to be implicated when a question is
posed to a witness that he refuses to answer, and his refusal implies the answer. The opposing
party, however, is unable to cross-examine the witness as to that statement because he gave no
testimony upon which a cross-examination could be based. See State v. Draper, supra. The danger
is that a jury may properly infer the veracity of the statement without the opportunity for
cross-examination. Id.
        In the present action, the question at issue is whether Lopez-Bravo sold meth. The question
was posed by Bates, the party now contending that he was denied his right to confront and
cross-examine Lopez-Bravo because he invoked his right to remain silent. Bates could not have
been prejudiced from Lopez-Bravo’s refusal to answer because the inference would be that he did,
indeed, sell meth. Since this would support Bates’ version of the incidents that led to the assault,
no violation of his constitutional right exists. Furthermore, any alleged error was invited by Bates
when he asked the question and a party cannot assert plain error which he invited. See State v.
Gutierrez, 260 Neb. 1008, 620 N.W.2d 738 (2001).
Ineffective Assistance of Counsel.
        Bates asserts that he received ineffective assistance of trial counsel when counsel failed to
move to strike Lopez-Bravo’s testimony. We disagree.
        A proper ineffective assistance of counsel claim alleges a violation of the fundamental
constitutional right to a fair trial. State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015). To prevail
on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel’s performance
was deficient and that this deficient performance actually prejudiced the defendant’s defense. Id.
To show deficient performance, a defendant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal law in the area. State v. Watt, 285 Neb.
647, 832 N.W.2d 459 (2013). To show prejudice, the defendant must demonstrate reasonable
probability that but for counsel’s deficient performance, the result of the proceeding would have
been different. Id. Deficient performance and prejudice can be addressed in either order. Id.
        Bates contends that his trial counsel’s performance was deficient because he failed to move
for an order striking Lopez-Bravo’s testimony after his invocation of the Fifth Amendment in front
of the jury. Citing U.S. v. Wilmore, 381 F.3d 868 (9th Cir. 2004), Bates claims that when a
government witness invokes the Fifth Amendment, the trial court should strike the witness’ direct
testimony unless the refusal to testify concerns collateral matters. Brief for appellant at 12. Striking
the witness’ testimony is the remedy for when the invocation of the Fifth Amendment violates the
defendant’s Sixth Amendment rights to confront and cross-examine the witnesses against him.
        Having determined above that Bates’ Sixth Amendment rights to confront and
cross-examine Lopez-Bravo were not violated, counsel was not ineffective in failing to move to
strike the testimony. We therefore find no merit to Bates’ claim that he received ineffective
assistance of counsel.




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                                          CONCLUSION
        We find that the district court erred in allowing the witness to invoke his right against
self-incrimination in the presence of the jury but find such error to be harmless beyond a reasonable
doubt. Further, Bates’ trial counsel was not ineffective for failing to move to strike the witness’
testimony. We therefore affirm the conviction and sentence.
                                                                                          AFFIRMED.




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