State v. Prado
30 Neb. Ct. App. 223
| Neb. Ct. App. | 2021Background
- Late-night pizza delivery: Prado delivered pizza to D.A.'s apartment, later returned while she was asleep and positioned himself between D.A. and her friend; D.A. awoke to digital penetration and later found abrasions consistent with digital penetration.
- Forensics and statements: SANE exam showed neck and vaginal abrasions; Prado's DNA found in neck bruise and could not be excluded from semen on underwear; Prado gave statements to police after being read Miranda warnings.
- Prado's account: testified he was invited back, expected a threesome, kissed D.A., and claimed premature ejaculation; denied digital or penile penetration.
- Procedural posture: Prado convicted by jury of first-degree sexual assault; sentenced to 24–26 years plus lifetime community supervision; appealed raising ineffective-assistance claims, suppression, evidentiary rulings under Neb. Rev. Stat. § 27-414 and § 27-412, sufficiency, and excessiveness of sentence.
- Prior act evidence: the State sought and the court admitted Prado's 2014 attempted sexual-assault conviction under § 27-414; Prado sought to introduce the victim's past sexual conduct under § 27-412, which was denied.
Issues
| Issue | State's Argument | Prado's Argument | Held |
|---|---|---|---|
| Ineffective assistance of trial counsel (multiple alleged failures) | Counsel’s choices were strategic or the objections would be meritless; admitted evidence was cumulative or nonprejudicial | Counsel failed to elicit/contest key testimony, impeach witnesses, object to hearsay/irrelevant/prejudicial evidence, and move to strike sustained hearsay | Rejected: record shows no deficient performance or no prejudice for each asserted failure; many objections would have been meritless or evidence was cumulative |
| Appointment of new counsel post-verdict | Court properly granted withdrawal at Prado’s repeated request | Appointment prejudiced sentencing because new counsel lacked trial familiarity | Rejected: Prado repeatedly requested replacement; he invited the procedure so no reversible error |
| Motion to suppress statements (Miranda) | Prewarning remarks were not interrogation likely to elicit incriminating response; later warnings cured any concern | Pre-warning question elicited incriminating response and tainted later statements | Rejected: question was transitional/innocuous; Elstad allows later admissibility when initial unwarned voluntary statements are not the product of coercive tactics |
| Admissibility of prior sexual-offense conviction under § 27-414 | Prior act was substantially similar and probative; probative value not substantially outweighed by unfair prejudice | Prior conviction was too different and unfairly prejudicial | State prevails: court did not abuse discretion—similarities (victims asleep, touching of buttocks/vaginal area, leaving when confronted) supported admission |
| Exclusion of victim’s past sexual behavior under § 27-412 (rape-shield) | State did not open door; prior conduct not materially probative of consent to this act | Evidence of prior intoxicated sexual encounters and regret shows pattern and bears on consent/credibility; also argued Confrontation Clause | Rejected: trial court acted within discretion; Prado didn’t raise some statutory theories below and State did not open the door as in Lessley |
| Sufficiency of evidence for first-degree sexual assault | Evidence (victim testimony, injuries, DNA, Prado’s presence/admissions) supports no consent or deception as to actor’s identity | Victim’s partial inaction and initial belief it was another person show consent | State prevails: viewed favorably to State, evidence sufficient—victim half-asleep, deception/identity issue and penetration without consent supported conviction |
| Sentence excessive | Sentence within statutory range and court considered relevant factors | Sentence was excessive given circumstances | Rejected: within 1–50 year range; court considered presentence report and Spang factors; no abuse of discretion |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (1966) (warnings required before custodial interrogation)
- Oregon v. Elstad, 470 U.S. 298 (1985) (post-warning statements can be admissible after a voluntary unwarned admission absent coercion)
- Rhode Island v. Innis, 446 U.S. 291 (1980) (Miranda’s interrogation encompasses words or actions police should know are likely to elicit incriminating responses)
- State v. Casares, 291 Neb. 150 (2015) (appellate rule requiring direct-appeal raising of known or record-apparent ineffective-assistance claims)
- State v. Stelly, 304 Neb. 33 (2019) (ineffective-assistance claims must be stated with particularity; inability to show prejudice defeats claim)
- State v. Anderson, 305 Neb. 978 (2020) (standard for ineffective assistance on direct appeal; meritless objections need not be made)
- State v. Lessley, 257 Neb. 903 (1999) (rape-shield limitation may yield to confrontation rights where prosecution opens the door)
- State v. Valverde, 286 Neb. 280 (2013) (evidentiary admissibility under Nebraska Evidence Rules reviewed for abuse of discretion)