State v. Mitchell
294 Neb. 832
| Neb. | 2016Background
- Travis T. Mitchell was arrested after a high‑speed, erratic driving incident and charged with DUI (fourth offense, with refusal) and driving during revocation.
- Three officers observed Mitchell’s driving and each testified they smelled alcohol and believed he was impaired; open alcohol containers were found in the vehicle.
- During transport to jail, Mitchell made unsolicited postarrest statements (before Miranda warnings) that officers “didn’t catch [him] driving” and complained about where he was arrested; an audio recording of the transport was played to the jury.
- Mitchell did not testify at trial; at sentencing he was later found to be a habitual offender and received 5–10 years’ imprisonment and 15 years’ license revocation.
- In closing, the prosecutor commented that Mitchell “never says, I’m not drunk,” drawing attention to his postarrest, pre‑Miranda silence; defense moved for a mistrial, the court admonished the jury to disregard the remark but did not expressly grant a mistrial.
- The Nebraska Court of Appeals affirmed; the Nebraska Supreme Court granted review and affirmed, holding the prosecutor’s remarks were questionable but not prejudicial in context.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Mitchell) | Held |
|---|---|---|---|
| Whether the prosecutor’s comment on Mitchell’s postarrest, pre‑Miranda silence violated due process / the Fifth Amendment and required a mistrial | Commenting was permissible because statements/silence occurred pre‑Miranda and Mitchell volunteered statements; Frazier supports use of postarrest, pre‑Miranda silence | Commenting impermissibly penalized Mitchell’s right to remain silent (he did not testify) and prejudiced the jury (citing Doyle, Jenkins, Moore) | Court: No mistrial; comments were questionable but not materially prejudicial in context (evidence strong; remarks isolated; curative instruction given) |
| Whether a curative instruction/other factors cured any prejudice from the remark | Any error was cured by the court’s admonition and was isolated amid strong evidence | Admonition insufficient; remark called attention to silence and unduly influenced jury | Court: Curative instruction and strength of state’s evidence meant no abuse of discretion in denying mistrial |
Key Cases Cited
- Doyle v. Ohio, 426 U.S. 610 (1976) (post‑Miranda silence cannot be used to impeach or as evidence of guilt)
- Wainwright v. Greenfield, 474 U.S. 284 (1986) (prosecutorial comment using silence can violate due process depending on context)
- Jenkins v. Anderson, 447 U.S. 231 (1980) (prearrest silence may be used to impeach when defendant testifies)
- U.S. v. Frazier, 408 F.3d 1102 (8th Cir. 2005) (postarrest, pre‑Miranda silence may be admissible where no governmental inducement to silence exists)
- U.S. v. Moore, 104 F.3d 377 (D.C. Cir. 1997) (prosecutor’s use of postarrest, pre‑Miranda silence can violate Fifth Amendment when used to highlight defendant’s failure to explain)