State v. Mabior, 314 Neb. 932

Background:

Two victims (Loklok Thok and Doup Deng) were fatally shot after a party in Omaha; surveillance video shows a person in red/orange clothing bending over a victim and leaving in a dark vehicle.
Officers later linked a gray Dodge Charger and a black Chevy Cruze to the party; a Chevy Cruze stop produced an extended 9-mm magazine on the passenger floorboard matching casings from the scene.
A photo of a receipt for an extended 9‑mm magazine was found on a phone recovered from the Charger; Mabior was identified via ID in a wallet found in that Charger.
Mabior gave two recorded police interviews with inconsistent accounts (including admissions that he patted down the victims and that he saw the magazine), and in the second interview said, “I just don’t wanna talk no more,” after which questioning continued.
Trial evidence included testimony referring to a prior shooting of one victim (allegedly connected to a long‑standing feud), officers’ commentary in the recorded interviews, the surveillance video (with officer narration), and a witness who drove away from the scene identifying Mabior as the last person to get into the getaway car.
Mabior was convicted of two counts of first‑degree murder and two counts of using a firearm to commit a felony; he appealed alleging plain error and ineffective assistance of counsel. The Supreme Court affirmed convictions, found some claims unresolvable on direct appeal, and modified the sentences from “life without parole” to life imprisonment consistent with statute.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of evidence about victim's prior shooting (Evid. R. 404/403)	References to the prior Dallas shooting were improper propensity evidence and unfairly prejudicial	State: prior shooting was part of a long‑standing "beef" and inextricably intertwined; needed to present a coherent picture	Evidence was inextricably intertwined and relevant; admission was not plain error
Prosecutor's closing implying Mabior was responsible for prior shooting	Closing improperly suggested Mabior was responsible; prejudicial misconduct	State: closing accurately reflected Mabior’s own interview statements about the Dallas incident	Remarks did not constitute misconduct; no plain error
Prosecutor "vouching"/use of "we" and "my detectives" suggesting alignment with police	Repeated references aligned prosecutor with investigators and vouched for credibility, undermining fairness	State: many uses were benign or explanatory; court instructed jury lawyers’ statements are not evidence; evidence against Mabior strong	Even if some statements were questionable, they did not prejudice the trial when viewed in context; no plain error
Admission of officers’ commentary in recorded interviews (Rocha)	Officers’ statements that Mabior was lying/guilty should have been excluded or limited	State: Rocha requires ordinary evidence analysis; officers’ remarks may be admissible for context	Court applied Rocha; even if counsel should have sought a Rocha hearing, any error was harmless because commentary was cumulative
Counsel’s failure to move to suppress magazine/receipt (search/warrant issues)	Counsel ineffective for not suppressing magazine and phone receipt because searches/search extensions were unlawful	State: record shows search warrants for Charger and phone; stop lawfulness and prolongation insufficiently developed on record	Suppression claims re: magazine and first‑interview statements require additional factfinding; record insufficient to resolve ineffective‑assistance claim on direct appeal
Counsel’s failure to suppress statements after alleged invocation of Miranda	Mabior invoked right to remain silent; questioning continued; counsel ineffective for not moving to suppress post‑invocation statements	State: invocation must be unambiguous; even if invoked, statements after invoked were largely inconsequential and cumulative	Even assuming deficiency, no prejudice shown (no material statements after alleged invocation); claim fails on prejudice prong
Sentencing error (life without parole)	Sentence of “life without the possibility of parole” is barred by statute for Class IA	State: agrees sentence was erroneous	Court found plain error and modified sentence to life imprisonment as authorized by statute

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance requires deficient performance and prejudice)
Miranda v. Arizona, 384 U.S. 436 (custodial interrogation and invocation of right to remain silent)
State v. Rocha, 295 Neb. 716 (2017) (law‑enforcement commentary within recorded interviews is governed by ordinary rules of evidence and may be admissible for context)
State v. Burries, 297 Neb. 367 (2017) (other‑act evidence held inextricably intertwined where necessary to present a coherent picture)
State v. Parnell, 294 Neb. 551 (2016) (prior threats admissible as res gestae/inextricably intertwined to explain motive)
State v. Custer, 292 Neb. 88 (2015) (statutory sentencing limits; life without parole not authorized for Class IA under § 28‑105)