State v. Abram

STATE v. ABRAM 	55
Cite as 284 Neb. 55
and because there was no evidentiary hearing granted in this
case, we still lack such a record.
Based upon his allegations, we conclude that Seberger has
adequately pled facts which, if true, would have been a viola-
tion of his constitutional right to testify in his own behalf. As
such, the district court erred when it failed to grant Sebeger an
evidentiary hearing on this issue.
VI. CONCLUSION
The district court erred in denying Seberger an evidentiary
hearing on his allegation that he was not properly advised of
his right to testify. We reverse the decision of the district court
on this point and remand the cause for an evidentiary hearing
on this single allegation. In all other respects, the decision of
the district court is affirmed.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
Wright, J., not participating.
stAte of nebrAskA, Appellee, v.
rAyshAWn c. A brAm, AppellAnt.
815 N.W.2d 897
Filed July 13, 2012. 	No. S-11-057.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
3. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, regarding which an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the trial court.
4. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
5. Jurisdiction: Courts: Appeal and Error. After a party perfects an appeal to an
appellate court, the lower courts are generally divested of subject matter jurisdic-
tion over that case.
6. ____: ____: ____. The mere filing of a petition for certiorari does not auto-
matically stay proceedings in a lower court and does not divest a trial court
of jurisdiction.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

56 	284 NEBRASKA REPORTS
7. Appeal and Error. Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
8. Constitutional Law: Self-Incrimination: Due Process. In order to protect the
defendant’s right against self-incrimination, the 5th Amendment to the U.S.
Constitution as applicable to the states by the 14th Amendment forbids either
comment by the prosecution on the accused’s silence or instructions by the court
that such silence is evidence of guilt.
9. Trial: Words and Phrases: Appeal and Error. Structural errors are errors
so affecting the framework within which the trial proceeds that they demand
automatic reversal. They are distinguished from trial errors, which generally
occur during the presentation of the case to the jury, and which may therefore
be quantitatively assessed in the context of other evidence presented in order to
determine whether they were harmless beyond a reasonable doubt.
10. Constitutional Law: Appeal and Error. The U.S. Supreme Court has limited
structural errors to a few very specific categories—total deprivation of counsel,
trial before a judge who is not impartial, unlawful exclusion of members of the
defendant’s race from a grand jury, denial of the right to self-representation at
trial, and denial of the right to a public trial.
11. 	Constitutional Law: Courts: Appeal and Error. Constitutional error is subject
to automatic reversal only in those limited instances where a court has deter-
mined that the error is structural.
12. Constitutional Law: Jury Instructions: Appeal and Error. Most constitu-
tional errors, including constitutional errors in the giving of instructions, can
be harmless.
13. Jury Instructions: Appeal and Error. Harmless error analysis applies to
instructional errors so long as the error at issue does not categorically vitiate all
the jury’s findings.
14. Verdicts: Appeal and Error. Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict surely would have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
15. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict.
Appeal from the District Court for Douglas County: peter
c. bAtAillon, Judge. Reversed and remanded for a new trial.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.

STATE v. ABRAM 	57
Cite as 284 Neb. 55
connolly, 	Wright, 	stephAn, 	mccormAck, 	and 	miller-
lermAn, JJ., and irWin and pirtle, Judges.
miller-lermAn, J.
NATURE OF CASE
Rayshawn C. Abram appeals his convictions for attempted
first degree murder, use of a weapon to commit a felony,
criminal conspiracy, and tampering with a witness. Regarding
his jurisdictional challenge, we reject Abram’s claim that the
district court for Douglas County was divested of jurisdic-
tion when Abram filed a petition for writ of certiorari part
way through the proceedings. Regarding the substance of his
appeal, Abram claims, inter alia, that the district court erred
when it gave the jury a written instruction stating that the jury
must consider Abram’s refusal to testify as an admission of
guilt. Although we reject Abram’s argument that the giving
of this instruction was structural error, we conclude that it
was error and that it was not harmless; we therefore reverse
Abram’s convictions and remand the cause for a new trial.
STATEMENT OF FACTS
The charges against Abram arise from an incident in which
Sarah Schramm was shot. The State’s case focused on Abram’s
alleged role before, during, and after the shooting. The State’s
theory did not assert that Abram was the shooter.
Schramm had been dating Abram’s brother, Tieres Abram,
when Tieres committed suicide in 2007. Members of Tieres’
family blamed Schramm for his death. On June 23, 2008,
Abram’s 	and 	Tieres’ 	cousin, 	Jerrell 	Abram, 	encountered
Schramm at Tieres’ gravesite. Jerrell called his brother, Jamaal
Abram, who told Jerrell to take Schramm to another location.
Jerrell forced Schramm to come with him and told her he was
taking her to see Tieres’ mother, Denise Smith. After driving
Schramm around over several hours, Jerrell brought her to a
location where they met Jamaal. Schramm was shot several
times but survived and was able to get help. Schramm and
Jerrell testified that Jamaal shot Schramm.
Jamaal was convicted of attempted first degree murder,
use of a weapon to commit a felony, and criminal conspiracy.

58 	284 NEBRASKA REPORTS
His convictions and sentences were affirmed by the Nebraska
Court of Appeals in a memorandum opinion. State v. Abram,
No. A-10-219, 2010 WL 5384184 (Neb. App. Dec. 21, 2010)
(selected for posting to court Web site). Abram was also
charged in connection with the shooting of Schramm. The
charges against Abram included attempted first degree murder,
use of a weapon to commit a felony, criminal conspiracy, and
tampering with a witness.
At Abram’s trial, Schramm testified that while Jerrell was
driving her around on June 23, 2008, he questioned her about
Tieres’ death. During the drive, Jerrell made and received
numerous telephone calls in which it appeared to Schramm that
he was being told where to take her. When they reached the
final destination, she saw a parked vehicle that she recognized
as one Abram had been driving about 1 month earlier when
he had stopped her and confronted her about Tieres’ death.
Schramm did not testify that she saw Abram in the vehicle;
instead, she saw Jamaal walk out from among some trees.
Jamaal and Jerrell pulled her out of the car. Jamaal held a gun
to her back, walked her away from the car, and began firing
shots. She fell to the ground after the first shot, heard a few
more shots, and then heard people running and vehicles start-
ing and quickly leaving.
Jerrell testified at Abram’s trial that on June 23, 2008, he
went to visit Tieres’ grave with his cousin Sharie Colbert and
two of her friends. Jerrell saw Schramm there and told her she
should not be there. Jerrell called Jamaal in an attempt to reach
their aunt, Smith, who was Tieres’ mother, because he thought
Schramm should meet with Smith to talk about Tieres’ death.
Jamaal told Jerrell he would call him back. Jerrell then forced
Schramm to get into his car with the purpose of taking her to
see Smith. Jerrell gave Colbert the keys for Schramm’s car, and
Colbert and her friends took Schramm’s car away.
Jerrell drove around with Schramm, and while they were
driving, he had various telephone calls with Jamaal, trying
to determine where to take Schramm to meet with Smith. As
Jerrell was parked waiting at a location near Smith’s house, he
received a call from Abram, who told him to take Schramm
to another location where he would see Abram’s vehicle.

STATE v. ABRAM 	59
Cite as 284 Neb. 55
When Jerrell reached the location, he saw Abram’s vehicle. He
then saw Jamaal walk out from among some trees, approach
Schramm, and take her out of his vehicle. Jerrell heard Jamaal
ask Schramm what happened to Tieres, and then he saw Jamaal
shoot Schramm.
After the shooting, Jamaal ran to Abram’s vehicle and got
into the back seat. Abram’s vehicle left, and Jerrell followed
it. Abram’s vehicle stopped, and Jamaal jumped out and threw
the gun into a sewer. They continued on to Jerrell and Jamaal’s
mother’s house, where Jerrell saw Abram in the driver’s seat
of his vehicle. Jerrell and Jamaal went to the backyard to
burn their clothes. When they returned to the vehicles, Jerrell
saw Abram come out of Jerrell and Jamaal’s mother’s house.
They all got into Abram’s vehicle, where a friend of Abram’s
was sitting in the front passenger seat. As they drove around,
Abram told the passengers not to say anything about what
had happened.
The next day, Jerrell learned that Schramm had survived
the shooting. Jerrell testified that Abram arranged for Jamaal
to leave Omaha and go to Atlanta, Georgia, where he was
arrested on July 3, 2008. After Jamaal was arrested, there was
a warrant issued for Jerrell’s arrest. Abram helped Jerrell to
hide out by giving him car rides, a telephone, and video games
to pass the time. Abram arranged a meeting with Jerrell,
Colbert, and Colbert’s two friends who were with Jerrell and
Colbert at the grave. Abram told all of them not to say any-
thing about the night of the shooting. Abram also told Jerrell
he should burn the car he was driving that night; Jerrell did
not, but he had the car cleaned at a detail shop to remove
any indication that Schramm had been inside the car. Jerrell
was arrested in February 2009. He reached a plea agreement
with the State, pursuant to which he testified against Jamaal
and Abram.
Prior to Abram’s trial, he moved to continue the prelimi-
nary hearing on the basis that he had filed a petition for writ
of certiorari with the U.S. Supreme Court to review an earlier
ruling by the district court. Abram argued that the court did not
retain jurisdiction while the petition to the U.S. Supreme Court
was pending. After determining that the filing of a petition

60 	284 NEBRASKA REPORTS
for certiorari does not operate as a stay, the court denied the
motion to continue the preliminary hearing.
A jury trial was conducted. During the jury instruction con-
ference, neither party objected to the proposed jury instruction
No. 17, which in written form stated: “The Defendant has an
absolute right not to testify. The fact that the Defendant did
not testify must be considered by you as an admission of guilt
and must not influence your verdict in any way.” (Emphasis
supplied.) Before reading the instructions to the jury, the court
informed the jurors that six copies of the written instructions
would be given to them during deliberations and that they
would each be given a copy if they wanted. The court then
read the instructions to the jury. According to the record, the
court read instruction No. 17 as follows: “The Defendant has
an absolute right not to testify. The fact that the Defendant
did not testify must not be considered by you as an admis-
sion of guilt and must not influence your verdict in any way.”
(Emphasis supplied).
The 	jury 	found Abram 	guilty 	of 	all 	charged 	counts—
attempted first degree murder, use of a weapon to commit a
felony, criminal conspiracy, and tampering with a witness. The
court sentenced Abram to consecutive sentences of imprison-
ment for 40 to 50 years on the attempted murder conviction,
40 to 50 years on the weapon conviction, and 20 to 30 years
on the criminal conspiracy conviction. The court sentenced
Abram to imprisonment for 1 to 5 years on the conviction for
tampering with a witness and ordered the sentence to be served
concurrently with the sentence for criminal conspiracy.
Abram appeals his convictions.
ASSIGNMENTS OF ERROR
Abram claims that the district court erred (1) when it denied
his motion to continue the preliminary hearing and rejected his
argument that the filing of a petition for writ of certiorari to
the U.S. Supreme Court divested the court of jurisdiction and
operated as a stay and (2) when it gave the jury the written
instruction stating that it must consider his failure to testify
as an admission of guilt. Because of our resolution of these
assignments of error, we do not reach Abram’s remaining

STATE v. ABRAM 	61
Cite as 284 Neb. 55
assignments of error regarding jury selection, evidentiary rul-
ings, and effective assistance of trial counsel.
STANDARDS OF REVIEW
[1,2] A jurisdictional issue that does not involve a factual
dispute presents a question of law. Big John’s Billiards v. State,
283 Neb. 496, 811 N.W.2d 205 (2012). We independently
review questions of law decided by a lower court. Id.
[3,4] Whether a jury instruction is correct is a question
of law, regarding which an appellate court is obligated to
reach a conclusion independent of the determination reached
by the trial court. State v. Smith, 282 Neb. 720, 806 N.W.2d
383 (2011). In an appeal based on a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Huff, 282
Neb. 78, 802 N.W.2d 77 (2011).
ANALYSIS
Abram’s Filing of a Petition for Writ of Certiorari
to the U.S. Supreme Court Did Not Divest
the District Court of Jurisdiction.
Abram claims that because he had filed a petition for writ of
certiorari to the U.S. Supreme Court, the district court lost juris-
diction and the district court erred when it denied his motion to
continue the preliminary hearing on that basis. We consider this
assignment of error first, because the district court’s continuing
jurisdiction and our appellate jurisdiction are effectively chal-
lenged by this assignment of error. However, we conclude that
Abram’s filing of the petition for certiorari did not divest the
district court of jurisdiction and that therefore the court did not
err when it denied the motion to continue.
In ruling on the motion to continue, the court cited the
Nebraska Court of Appeals’ unpublished opinion in In re
Interest of Nicholas C., No. A-01-958, 2002 WL 31002490
(Neb. App. Aug. 6, 2002) (not designated for permanent pub-
lication), for the proposition that while the actual granting of
a writ of certiorari by the U.S. Supreme Court may operate
as a stay, the mere filing of a petition for writ of certiorari

62 	284 NEBRASKA REPORTS
does not operate as a stay. We agree with the reasoning of
the Court of Appeals and adopt the reasoning in that unpub-
lished opinion.
[5] We have held that after a party perfects an appeal to
an appellate court, the lower courts are generally divested of
subject matter jurisdiction over that case. Russell v. Kerry, Inc.,
278 Neb. 981, 775 N.W.2d 420 (2009). Based on this proposi-
tion of law, Abram argues that his petition for certiorari to the
U.S. Supreme Court divested the district court of jurisdiction.
However, Abram does not cite any authority to the effect that
filing a petition for writ of certiorari constitutes “perfecting an
appeal.” To the contrary, authority from other courts and the
rules of the Nebraska appellate courts and of the U.S. Supreme
Court indicate that it does not.
One state appellate court has held that “while the actual
granting of a writ of certiorari by the United States Supreme
Court operates as a stay, the mere filing of a petition for
certiorari does not.” Ligon v. Bartis, 254 Ga. App. 154, 561
S.E.2d 831, 833 (2002) (emphasis in original). The Court of
Appeals for the Eighth Circuit has stated that neither the fil-
ing nor the granting of a petition for certiorari operates as a
stay. McCurry v. Allen, 688 F.2d 581 (8th Cir. 1982). In this
case, the U.S. Supreme Court did not grant Abram’s petition
for certiorari and therefore we need not determine whether the
granting of certiorari would divest the state district court of
jurisdiction. The only issue before us is whether Abram’s fil-
ing of a petition for writ of certiorari divested the district court
of jurisdiction.
Our resolution of this issue is informed by the procedural
rules of the Nebraska appellate courts and of the U.S. Supreme
Court which indicate that the filing of a petition for certiorari
does not automatically stay proceedings in the state court.
Nebraska court rules of appellate practice provide a proce-
dure for a party to obtain a stay of the mandate issued by a
Nebraska appellate court during the pendency of the party’s
attempted appeal to the U.S. Supreme Court. See Neb. Ct. R.
App. P. § 2-114(A)(2). The rule requires the party to apply for
a stay within 7 days from the date of the Nebraska appellate
court’s disposition of the case and requires a written showing

STATE v. ABRAM 	63
Cite as 284 Neb. 55
that a federal question is involved. Similarly, the U.S. Supreme
Court rules provide that a party may apply to the U.S. Supreme
Court to stay enforcement of the judgment being appealed and
that the party must comply with certain procedures, includ-
ing a requirement that the party has first requested a stay in
the court below. See Sup. Ct. R. 23. Furthermore, the U.S.
Supreme Court rules provide that “[r]eview on a writ of cer-
tiorari is not a matter of right, but of judicial discretion” which
“will be granted only for compelling reasons.” Sup. Ct. R. 10.
With these rules in mind, we have reviewed the record and find
nothing to indicate that Abram identified a compelling federal
question and explicitly sought a “stay” of state court proceed-
ings while his petition for certiorari was being considered by
the U.S. Supreme Court.
[6] Given these rules and the stated unlikelihood that cer-
tiorari will be granted, we conclude that the mere filing of a
petition for certiorari does not automatically stay proceedings
in a lower court and does not divest a trial court of jurisdiction.
We therefore reject Abram’s claim that the district court erred
when it denied his motion to continue on the basis that he had
filed a petition for writ of certiorari.
The Court Committed Reversible Error When It
Gave the Jury an Erroneous Written Instruction
Regarding the Import of Abram’s Decision
Not to Testify in His Defense.
Abram next claims that the district court erred when it gave
the jury a written instruction stating that it must consider his
failure to testify as an admission of guilt. We reject Abram’s
argument that the error was structural error and instead deter-
mine that it was error subject to harmless error review. As
explained below, we conclude that the error was not harmless
and that it requires reversal of Abram’s convictions.
[7] Abram concedes that he did not object to the writ-
ten instruction at trial but urges us to review the instruction
as plain error. Plain error may be found on appeal when an
error unasserted or uncomplained of at trial, but plainly evi-
dent from the record, prejudicially affects a litigant’s substan-
tial right and, if uncorrected, would result in damage to the

64 	284 NEBRASKA REPORTS
integrity, reputation, and fairness of the judicial process. State
v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011). The error
in the written instruction is plainly evident from the record.
As we discuss below, the error prejudicially affects Abram’s
substantial constitutional right against self-incrimination and
is not harmless. It therefore would result in damage to the
integrity, reputation, and fairness of the judicial process to
leave the error uncorrected. We therefore review the chal-
lenged instruction.
[8] The challenged instruction stated in part that the fact
that Abram did not testify must be considered by the jury as an
admission of guilt. This statement is an incorrect statement of
the law. In order to protect the defendant’s right against self-
incrimination, the 5th Amendment to the U.S. Constitution
as applicable to the states by the 14th Amendment “forbids
either comment by the prosecution on the accused’s silence
or instructions by the court that such silence is evidence of
guilt.” Griffin v. California, 380 U.S. 609, 615, 85 S. Ct.
1229, 14 L. Ed. 2d 106 (1965). It is therefore clear that an
instruction requiring the jury to consider a defendant’s failure
to testify as an admission of guilt is an error of constitu-
tional magnitude.
[9] However, we must determine whether, as Abram urges,
the error is structural error requiring automatic reversal or
whether, as the State urges, the error is subject to harmless
error review. We have said that structural errors are errors so
affecting the framework within which the trial proceeds that
they demand automatic reversal. State v. Barranco, 278 Neb.
165, 769 N.W.2d 343 (2009). They are distinguished from trial
errors, which generally occur “during the presentation of the
case to the jury, and which may therefore be quantitatively
assessed in the context of other evidence presented in order to
determine whether [they were] harmless beyond a reasonable
doubt.” Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.
Ct. 1246, 113 L. Ed. 2d 302 (1991).
[10,11] We have stated:
The Supreme Court limited structural errors to a few very
specific categories—total deprivation of counsel, trial
before a judge who is not impartial, unlawful exclusion of

STATE v. ABRAM 	65
Cite as 284 Neb. 55
members of the defendant’s race from a grand jury, denial
of the right to self-representation at trial, and denial of the
right to a public trial.
State v. Bjorklund, 258 Neb. 432, 504, 604 N.W.2d 169, 225
(2000) (citing Arizona v. Fulminante, supra), abrogated on
other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229
(2008). Constitutional error is subject to automatic reversal
only in those limited instances where a court has determined
that the error is structural. State v. Payan, 277 Neb. 663, 765
N.W.2d 192 (2009). The fact that the error in this case was a
constitutional error does not in itself mean that it was struc-
tural error.
[12] The U.S. Supreme Court has recognized that most con-
stitutional errors, including constitutional errors in the giving
of instructions, can be harmless. See State v. Payan, supra (cit-
ing Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L.
Ed. 2d 35 (1999)). See, also, Chapman v. California, 386 U.S.
18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In Neder, the Court
determined that “an instruction that omits an element of the
offense does not necessarily render a criminal trial fundamen-
tally unfair or an unreliable vehicle for determining guilt or
innocence” and that such instructional error was not structural
but was subject to harmless error review. 527 U.S. at 9 (empha-
sis omitted). In Chapman v. California, supra, the prosecutor
commented on the defendants’ failure to testify and the trial
court charged the jury that it could draw adverse inferences
from their failure to testify. The Court in Chapman applied a
harmless error analysis to this constitutional error. See, also,
United States v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L.
Ed. 2d 96 (1983) (finding prosecutor’s reference to defendants’
failure to testify to be harmless error).
Against this framework distinguishing between structural
and nonstructural constitutional errors, Abram argues that the
erroneous instruction in this case is similar to a constitutionally
deficient reasonable doubt instruction that the U.S. Supreme
Court determined to be structural error in Sullivan v. Louisiana,
508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).
The Court in Sullivan reasoned that because of the deficient
instruction, there had been no jury verdict of guilty beyond

66 	284 NEBRASKA REPORTS
a reasonable doubt, and that therefore harmless error review
considering whether the verdict could have been rendered in
the absence of the error was utterly meaningless. Because there
was no proper verdict, “[t]here [was] no object, so to speak,
upon which harmless-error scrutiny can operate.” 508 U.S. at
280 (emphasis in original). Abram argues that the erroneous
instruction in this case deprived him of a proper jury verdict
and that it cannot be subjected to harmless error review. We do
not agree.
[13] The U.S. Supreme Court has said that harmless error
analysis applies to instructional errors so long as the error
at issue does not categorically vitiate all the jury’s findings.
Hedgpeth v. Pulido, 555 U.S. 57, 129 S. Ct. 530, 172 L. Ed. 2d
388 (2008). In addition to the examples recited above, the Court
has found certain instructional errors to be properly subject to
harmless error review. See, Carella v. California, 491 U.S. 263,
109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989) (jury instruction
imposing mandatory presumption in violation of due process
rights subject to harmless error review); Kentucky v. Whorton,
441 U.S. 786, 99 S. Ct. 2088, 60 L. Ed. 2d 640 (1979) (failure
to instruct on presumption of innocence subject to harmless
error review). We conclude that the erroneous instruction in
this case did not vitiate the jury’s verdicts in the way a consti-
tutionally deficient reasonable doubt instruction would do. The
reasonable doubt instruction in Sullivan v. Louisiana, supra,
vitiated the entire verdict, because the verdict was presumably
based on an erroneous standard of proof. In the present case,
the written instruction erroneously instructed the jury how it
must consider Abram’s failure to testify. But the jury was still
instructed that it must reach its verdicts based on the evidence
and that it must find Abram guilty beyond a reasonable doubt
in order to convict. We conclude that the error in this case
did not affect the framework within which the trial proceeded
or vitiate the entire verdicts in the manner which occurred in
Sullivan. We conclude that the error in this case is not struc-
tural error requiring automatic reversal and that instead it is
subject to harmless error review.
[14] We have stated that harmless error review looks to the
basis on which the trier of fact actually rested its verdict; the

STATE v. ABRAM 	67
Cite as 284 Neb. 55
inquiry is not whether in a trial that occurred without the error
a guilty verdict surely would have been rendered, but, rather,
whether the actual guilty verdict rendered in the questioned
trial was surely unattributable to the error. State v. Sorensen,
283 Neb. 932, 814 N.W.2d 371 (2012). We conclude that we
cannot say that the jury’s verdicts in this case were surely unat-
tributable to the erroneous written instruction.
We have said that in reviewing a claim of prejudice from
jury instructions given or refused, an appellate court must read
the instructions together, and if, taken as a whole, they cor-
rectly state the law, are not misleading, and adequately cover
the issues supported by the pleadings and evidence, there is
no prejudicial error necessitating reversal. State v. Pullens,
281 Neb. 828, 800 N.W.2d 202 (2011). We have also said
that an instruction will not be held erroneous simply because
of a typographical error which cannot reasonably be said to
have confused or misled the jury to the prejudice of the party
complaining. State v. Swiney, 179 Neb. 230, 137 N.W.2d
808 (1965).
The State asserts that the erroneous instruction in this case
was harmless error. The State contends that when the portion
of jury instruction No. 17 at issue is read with the rest of the
instruction and other instructions, it is clear the jury was not
misled or confused, and that the jury would understand there is
a typographical error. The State adds that the instructions as a
whole correctly state the law and are not misleading.
The State submits that the jury was adequately instructed
that Abram had a right not to testify, because jury instruction
No. 14 stated, “Any person has the right to invoke his/her right
to remain silent as provided in the Fifth Amendment of the
United States Constitution,” and the first part of jury instruc-
tion No. 17 stated, “The Defendant has an absolute right not to
testify.” The State further notes that after the written instruction
No. 17 erroneously stated, “The fact that the Defendant did not
testify must be considered by you as an admission of guilt,”
the instruction continues, “and must not influence your ver-
dict in any way.” (Emphasis supplied.) The State emphasizes
that the court’s spoken instruction stated correctly, “The fact
that the Defendant did not testify must not be considered by

68 	284 NEBRASKA REPORTS
you as an admission of guilt . . . .” (Emphasis supplied.) The
State argues that considering the totality of the instructions, it
was clear to the jury that Abram had a right not to testify, and
that his decision to exercise that right should not influence the
jury’s verdicts.
Regarding the typographical error, the State argues it would
have been clear to the jury that the written form of instruc-
tion No. 17 contained a typographical error and that the word
“not” had been inadvertently omitted. The State’s argument
finds some support in this court’s decision in Fleming Realty
& Ins., Inc. v. Evans, 199 Neb. 440, 259 N.W.2d 604 (1977),
where this court concluded that the inadvertent substitution of
the word “able” for “unable” in an instruction was not revers-
ible error. In Fleming Realty & Ins., Inc., however, it was clear
from the instruction itself and other instructions that the jury
would not have been confused or misled as to the applicable
law, and the error occurred in a civil case, where the constitu-
tional right against self-incrimination was not at issue.
In evaluating the State’s argument that the error was harm-
less when considered in the context of the totality of the
instructions, we believe there are important considerations
which outweigh this argument. In this regard, we note that
although the spoken instruction was correct, the erroneous
written instruction was given to the jury for its use during
deliberations. We believe under these circumstances that the
jury would resolve the confusion and inconsistency between
a fleeting oral instruction and a tangible written instruction in
favor of the latter.
With regard to evidence, we have noted the danger that a
jury will give undue emphasis to written testimonial evidence
to which it has access in the jury room during deliberations.
See State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). See,
also, State v. Dixon, 259 Neb. 976, 614 N.W.2d 288 (2000)
(discussing tape-recorded telephone conversation made avail-
able to jury during deliberation). Although instructions are not
evidence and although it is not improper for the court to give
the jury a written copy of instructions, these cases support
the proposition that if there is an inconsistency between oral
and written instructions, the jury will more likely follow the

STATE v. ABRAM 	69
Cite as 284 Neb. 55
written instruction because it has been given more emphasis
by being made available during deliberations. Contrary to the
State’s suggestion, we will not presume in this case that the
jury detected a typographical error and supplied the missing
language in the challenged instruction.
We recently concluded in State v. Miller, 281 Neb. 343,
798 N.W.2d 827 (2011), that where a jury instruction was
an incorrect statement of the law, and where one instruction
effectively negated another instruction and the two provisions
could not be read harmoniously, prejudicial error occurred and
required reversal. The same reasoning and result are warranted
in this case.
If taken at face value, the challenged instruction would
require the jury to consider Abram to have admitted guilt
because he did not testify. The risk and corresponding preju-
dice due to a misunderstanding of the applicable law must be
considered in light of the constitutional principles at issue.
The most obvious constitutional right at issue is the criminal
defendant’s Fifth Amendment right against self-incrimination.
His or her exercise of that right resulting in his or her
silence is not to be considered as evidence of guilt. Griffin v.
California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106
(1965). In addition, we believe that the Sixth Amendment’s
command to afford jury trials in serious criminal cases is also
implicated. See Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.
1444, 20 L. Ed. 2d 491 (1968). The U.S. Supreme Court has
noted that a trial judge is prohibited from directing a verdict
for the prosecution in a criminal trial by jury, Rose v. Clark,
478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986),
and further stated that “a trial judge is prohibited from . . .
directing the jury to come forward with such a verdict . . .
regardless of how overwhelmingly the evidence may point in
that direction.” United States v. Martin Linen Supply Co., 430
U.S. 564, 572-73, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977).
Although the challenged instruction did not direct the jury
to convict Abram, the erroneous written instruction, to the
effect that it must consider his failure to testify as an admis-
sion of guilt, had the tendency to remove the fact finding
regarding guilt from the jury in this criminal case in a manner

70 	284 NEBRASKA REPORTS
incompatible with robust exercise of the right to jury trial
afforded by the Sixth Amendment.
In Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.
Ed. 2d 705 (1967), the U.S. Supreme Court applied harmless
error analysis to a case in which the prosecutor commented on
the defendants’ failure to testify and the trial court charged the
jury that it could draw adverse inferences from their failure
to testify. The Court concluded that the error was not harm-
less, because
the state prosecutor’s argument and the trial judge’s
instruction 	to 	the 	jury 	continuously 	and 	repeatedly
impressed the jury that from the failure of [defendants] to
testify, to all intents and purposes, the inferences from the
facts in evidence had to be drawn in favor of the State—
in short, that by their silence [defendants] had served as
irrefutable witnesses against themselves.
386 U.S. at 25. We recognize that the present case may be
distinguished from Chapman in that the jury was not “con-
tinuously and repeatedly” told that Abram’s silence could be
taken as an admission of guilt. However, the erroneous instruc-
tion was written and was sent to the jury, thus giving it more
weight than a correct oral instruction. Furthermore, the erro-
neous instruction in this case went further than the court’s
instruction in Chapman which merely stated that the jury could
consider the defendants’ silence as an admission of guilt; the
challenged instruction in this case stated in part: “The fact that
the Defendant did not testify must be considered by you as an
admission of, guilt . . . .” (Emphasis supplied.) Furthermore,
the erroneous instruction could not be harmonized with correct
instructions, leading to jury confusion. See State v. Miller, 281
Neb. 343, 798 N.W.2d 827 (2011).
In light of the important constitutional safeguards at issue,
we determine that the risk that the jury at a minimum was con-
fused by the instruction and at worst thought it was required
to consider Abram as having admitted guilt prevents us from
concluding that the error was harmless. We cannot say that
the jury’s verdict on any of the charges was “surely unattrib-
utable” to the improper written instruction advising the jury
that Abram admitted guilt when he chose not to testify. We

STATE v. ABRAM 	71
Cite as 284 Neb. 55
therefore conclude that the error is prejudicial and requires
reversal of Abram’s convictions for attempted first degree mur-
der, use of a weapon to commit a felony, criminal conspiracy,
and tampering with a witness.
Abram May Be Retried on Remand.
[15] Having concluded that the erroneous written instruc-
tion was reversible error, we must determine whether the
totality of the evidence admitted by the district court was
sufficient to sustain Abram’s convictions. If it was not, then
double jeopardy forbids a remand for a new trial. See State
v. Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012). But the
Double Jeopardy Clause does not forbid a retrial so long as
the sum of all the evidence admitted by a trial court, whether
erroneously or not, would have been sufficient to sustain a
guilty verdict. Id.
After reviewing the record, we conclude that the evidence
presented at trial, including Schramm’s and Jerrell’s testimony
recounted above and the testimony of other witnesses, was
sufficient to support the verdicts against Abram. We therefore
conclude that double jeopardy does not preclude a remand for
a new trial and that Abram may be retried on all the charges—
attempted first degree murder, use of a weapon to commit a
felony, criminal conspiracy, and tampering with a witness.
We Need Not Consider Abram’s Remaining
Assignments of Error.
Because we have reversed Abram’s convictions, we need
not reach his remaining assignments of error. Abram assigned
error to issues related to jury selection, evidentiary rulings,
and effective assistance of trial counsel. These issues either
are not likely to recur on remand or must be evaluated in the
context of a particular trial, and therefore review of the court’s
rulings in this trial would not necessarily determine how the
court should rule in a new trial. We therefore do not consider
Abram’s remaining assignments of error.
CONCLUSION
The filing of Abram’s petition for writ of certiorari during
the pendency of this action did not divest the district court of

72 	284 NEBRASKA REPORTS
jurisdiction, and the district court did not err when it denied
the motion to continue. However, we conclude that the district
court did err when it gave a written instruction stating that
the jury must consider Abram’s refusal to testify as an admis-
sion of guilt. Although such error is not structural error, we
conclude that the error was not harmless and that it requires
reversal of Abram’s convictions. Because there was sufficient
evidence to support the convictions, we remand the cause for
a new trial on the charges of attempted first degree murder,
use of a weapon to commit a felony, criminal conspiracy, and
tampering with a witness.
reversed And remAnded for A neW triAl.
heAvicAn, C.J., not participating.
stAte of nebrAskA, Appellee, v.
eddie r. kibbee, AppellAnt.
815 N.W.2d 872
Filed July 13, 2012. 	No. S-11-361.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
3. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
4. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
5. Constitutional Law. Under both the federal Constitution, U.S. Const. art. I, § 10,
and the state Constitution, Neb. Const. art. I, § 16, no ex post facto law may
be passed.
6. Constitutional Law: Statutes: Sentences. A law which purports to apply to
events that occurred before the law’s enactment, and which disadvantages a
defendant by creating or enhancing penalties that did not exist when the offense
was committed, is an ex post facto law and will not be endorsed by the courts.