State v. Clausen
951 N.W.2d 764
Neb.2020Background
- Clausen and co-defendants escaped Lincoln Correctional Center by hiding in a laundry truck; they later stole a vehicle and fled; Clausen was identified and arrested and charged with escape, theft by unlawful taking, and operating a motor vehicle to avoid arrest.
- Clausen's defense was duress: he planned to show co-escapee Armon Dixon coerced and drove the getaway vehicle; Clausen also sought to call cellmate Bentley Buckner to corroborate threats by Dixon.
- At pretrial/deposition hearings Dixon admitted planning and coercing aspects of the escape but refused to answer questions about how he obtained the phone and drugs used to plan the escape; the State would not grant him immunity.
- Trial court excluded Dixon under Neb. Evid. R. § 27-513(2) (adopted Cardillo framework) because Dixon would likely assert the Fifth on cross and his refusal was closely related to the escape; the court excluded Buckner as hearsay, speculative, and too remote to support duress.
- Clausen testified at trial, repeatedly had disruptive outbursts protesting excluded witnesses, was warned, then continued outbursts; the court struck his entire testimony and instructed the jury to disregard it; the jury convicted on all counts and the court imposed habitual-offender sentences totaling 80–140 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of Dixon’s testimony | Dixon intended to invoke Fifth on critical matters; allowing him risks privilege claims before jury; exclusion prevents jury prejudice | Dixon would mainly invoke privilege on collateral matters; his testimony was central to duress and should be admitted | Court did not abuse discretion; adopted Cardillo categories and excluded Dixon because his refusal implicated matters "closely related" to the crime and would require striking his testimony |
| Exclusion of Buckner’s testimony | Buckner’s expected testimony was hearsay, speculative, and temporally remote for duress | Buckner would corroborate Dixon’s threats and Clausen’s fear | Court did not abuse discretion; Buckner’s proposed testimony was inadmissible as hearsay, speculative, and too remote |
| Striking Clausen’s testimony for courtroom outbursts | Defendant’s flagrant misconduct tainted the trial; court warned him and permissibly struck testimony to preserve fairness | Striking all testimony was excessive; court should have used lesser sanctions or found contempt first | No plain error; court acted within discretion under Illinois v. Allen to preserve courtroom decorum and fair trial |
| Refusal to give no-inference instruction | Not applicable — defendant testified then forfeited right by conduct | Sought pattern no-adverse-inference instruction after testimony was stricken | Instruction would have misstated the record (he testified then lost the right by misconduct); refusal was proper |
| Right to present defense / structural-error claim | State: evidentiary rules and defendant’s misconduct, not the court, deprived defendant of witnesses; errors were trial errors | Clausen: exclusion of critical witnesses and striking testimony deprived him of the right to present a defense and warranted automatic reversal | Errors were trial (not structural) errors; defendant’s rights were not violated on the facts and no automatic reversal required |
| Ineffective assistance of counsel (various claims) | State: record shows counsel objected appropriately, pursued evaluations, and defendant was not prejudiced by alleged omissions | Clausen: trial counsel failed in numerous respects (objections, disclosures, introducing deposition, preserving suppression issues, etc.) | Court concluded no deficient performance or no prejudice on the record for each claim; most complaints lacked merit |
Key Cases Cited
- United States v. Cardillo, 316 F.2d 606 (2d Cir. 1963) (three-category framework for striking testimony when witness asserts Fifth Amendment privilege)
- Illinois v. Allen, 397 U.S. 337 (1970) (trial court has discretion to control disruptive defendants, including removing or sanctioning them)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel: deficient performance and prejudice)
- Rock v. Arkansas, 483 U.S. 44 (1987) (defendant’s right to testify is constitutionally protected but not absolute)
- United States v. Crews, 856 F.3d 91 (D.C. Cir. 2017) (discusses limits on excluding defense witnesses who invoke Fifth and balancing prosecution’s cross-examination interests)