State v. Price, 944 N.W.2d 279

Background

Price was tried twice for aiding and abetting robbery and aiding and abetting first-degree assault arising from an October 3, 2014 beating/robbery that left the victim with severe traumatic brain injury.
First trial (Dec. 2016) ended in a deadlocked jury; the court declared a mistrial after the foreperson said the jury was hopelessly deadlocked; Price asked to poll jurors individually and later filed a plea in bar asserting double jeopardy; plea denied.
The Nebraska Court of Appeals affirmed denial of the plea in bar (and refusal to individually poll jurors); the Nebraska Supreme Court denied further review, creating law-of-the-case for the second-trial disputes stemming from the mistrial.
At the second trial (June 2018) the State presented eyewitness ID (Nartey identified Price), surveillance placing Price in the area, clothing recovered in a search of Price’s residence, and forensic evidence linking a roommate’s shoes to the victim’s blood; Price did not testify and moved for directed verdicts which were denied.
Price was convicted on both counts, moved for a new trial (arguing prosecutorial misconduct and other errors), changed counsel before sentencing, and was sentenced to concurrent 25–40 year terms; he appealed raising multiple issues including prosecutorial misconduct, insufficiency of evidence, and excessive sentence (an ineffective assistance claim was not considered due to a deficient assignment).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Price)	Held
Court’s handling of mistrial / polling jurors / plea in bar	Court of Appeals already affirmed denial of plea in bar; mistrial was supported by manifest necessity; law-of-the-case applies	Trial court erred by not polling individual jurors on each count and by allowing retrial over plea in bar	Court invoked law-of-the-case; declined to reconsider; plea denial and mistrial decision stand
Prosecutorial misconduct in closing (plain-error review)	Prosecutor’s remarks were reasonable inferences from the evidence and not personal opinion or improper references to other crimes	Prosecutor made 35 improper remarks (vouching, calling Price a liar, inflaming the jury, misstating evidence) and Price failed to object at trial	No plain error: challenged remarks were inferences from evidence, not improper vouching or inflammatory statements; no mistrial warranted
Motion for new trial (based on closing argument and photo-lineup testimony)	No prosecutorial misconduct; any testimony about photos was minor and not unduly prejudicial	New trial required because closing comments and officer testimony (implying a mugshot) unfairly prejudiced jury	No abuse of discretion in denying new trial; remarks/testimony were either proper or harmless
Sufficiency of evidence (aiding and abetting robbery & first-degree assault)	Evidence (eyewitness ID, surveillance, possession of matching clothing, forensic link to roommate’s shoes) supports convictions beyond a reasonable doubt	ID was unreliable and circumstantial evidence insufficient to prove Price’s participation beyond reasonable doubt	Evidence sufficient when viewed in State’s favor; aiding-and-abetting theory covers participation though specific acts by each assailant were unclear
Ineffective assistance of counsel (procedural presentation)	N/A (State argued procedural default / brief deficiency)	Counsel’s performance was ineffective in unspecified ways (raised in brief)	Court refused to consider ineffective-assistance claim because appellant’s assignment of error failed to specifically allege deficient performance as required by State v. Mrza
Sentence excessive	Sentences within statutory range and sentencing judge considered relevant factors	Sentences (25–40 years concurrent) were excessive given mitigating factors and lesser culpability than co-defendant	No abuse of discretion; sentences within statutory limits and court considered mitigating and aggravating factors

Key Cases Cited

State v. Mrza, 302 Neb. 931 (2019) (requires specific allegations of deficient performance in ineffective-assistance assignments; discusses plain-error review)
State v. Combs, 297 Neb. 422 (2017) (better practice to inquire whether jury is deadlocked on each count before granting mistrial)
State v. Gonzales, 294 Neb. 627 (2016) (distinguishes permissible comment on inferences from evidence from improper prosecutorial vouching)
State v. Stubbendieck, 302 Neb. 702 (2019) (defines aiding-and-abetting participation threshold)
State v. Case, 304 Neb. 829 (2020) (standard for reviewing sufficiency of the evidence)
State v. Becker, 304 Neb. 693 (2019) (abuse-of-discretion standard for sentencing within statutory limits)
State v. Lavalleur, 298 Neb. 237 (2017) (explains law-of-the-case doctrine)
State v. Thomas, 210 Neb. 298 (1981) (aiding and abetting liability where multiple assailants cause injuries)