State v. Nave

STATE v. NAVE 	477
Cite as 284 Neb. 477
State of NebraSka, appellee, v.
robert b. Nave, appellaNt.
821 N.W.2d 723
Filed October 12, 2012. 	No. S-11-798.
1. Juries: Discrimination: Appeal and Error. An appellate court reviews de novo
the facial validity of an attorney’s race-neutral explanation for using a peremptory
challenge as a question of law.
2. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error. An appel-
late court reviews for clear error a trial court’s factual determinations whether a
prosecutor’s race-neutral explanation is persuasive and whether the prosecutor’s
use of a peremptory challenge was purposefully discriminatory.
3. Juries: Discrimination: Equal Protection: Prosecuting Attorneys. A prosecu-
tor ordinarily is entitled to exercise permitted peremptory challenges for any
reason at all, if that reason is related to his view concerning the outcome of the
case. But the Equal Protection Clause forbids the prosecutor to challenge poten-
tial jurors solely because of their race.
4. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining whether a
prosecutor impermissibly struck a prospective juror based on race is a three-step
process. First, a defendant must make a prima facie showing that the prosecutor
exercised a peremptory challenge because of race. Second, assuming the defend-
ant made such a showing, the prosecutor must offer a race-neutral basis for strik-
ing the juror. And third, the trial court must then determine whether the defendant
has carried his or her burden of proving purposeful discrimination. The third step
requires the trial court to evaluate the persuasiveness of the justification proffered
by the prosecutor.
5. Juries: Discrimination. In evaluating a challenge under Batson v. Kentucky, 476
U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the ultimate burden of persua-
sion regarding racial motivation rests with, and never shifts from, the opponent
of the strike.
6. Juries: Discrimination: Prosecuting Attorneys: Moot Question. Once a pros-
ecutor has offered a race-neutral explanation for the peremptory challenges and
the trial court has decided the ultimate question of intentional discrimination,
the preliminary issue of whether the defendant had made a prima facie showing
is moot.
7. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error. In deter-
mining whether the prosecutor’s stated reasons were race neutral, an appellate
court does not consider whether the prosecutor’s reasons are persuasive. Indeed,
while the prosecutor’s reasons must be comprehensible, they need not be persua-
sive or even plausible, if they are not inherently discriminatory.
8. Juries: Discrimination: Prosecuting Attorneys. The third step of the inquiry
under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),
involves evaluating the prosecutor’s credibility, and the best evidence of dis-
criminatory intent often will be the demeanor of the attorney who exercised
the challenge.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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478 	284 NEBRASKA REPORTS
9. ____: ____: ____. The relative number or percentage of African-American jurors
peremptorily struck is relevant in determining whether a prosecutor’s stated rea-
sons for a strike were pretextual.
10. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights:
Appeal and Error. In reviewing a motion to suppress a statement based on its
claimed involuntariness—including claims that law enforcement procured it by
violating the safeguards established by the U.S. Supreme Court in Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)—an appellate
court applies a two-part standard of review. Regarding historical facts, an appel-
late court reviews the trial court’s findings for clear error. Whether those facts
meet constitutional standards, however, is a question of law, which an appellate
court reviews independently of the trial court’s determination.
11. 	Miranda Rights: Self-Incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966), requires law enforcement to give a particular
set of warnings to a person in custody before interrogation: that he has the right
to remain silent, that any statement he makes may be used as evidence against
him, and that he has the right to an attorney, either retained or appointed.
12. ____: ____. While the particular rights delineated under Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), are absolute, the language
used to apprise suspects of those rights is not.
13. ____: ____. Although a suspect can exercise his Miranda rights at any point dur-
ing custodial interrogation, a warning to that effect is not required.
14. Evidence: Appeal and Error. When reviewing the sufficiency of the evidence
to support a conviction, the relevant question for an appellate court is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.
15. Criminal Law: Conspiracy. A person is guilty of criminal conspiracy if the per-
son intends to promote or facilitate the commission of a felony, agrees with one
or more persons to commit that felony, and then the person, or a coconspirator,
commits an overt act furthering the conspiracy.
16. Controlled Substances: Intent: Evidence. The quantity of drugs possessed
is a relevant factor in determining whether a suspect planned on distributing
the drugs.
Appeal from the District Court for Douglas County: J
ruSSell D err, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
Wright, C oNNolly, StephaN, MCC orMaCk, M iller-lerMaN,
and CaSSel, JJ.

STATE v. NAVE 	479
Cite as 284 Neb. 477
C oNNolly, J.
I. SUMMARY
The State charged Robert B. Nave with numerous crimes,
including first degree murder, criminal conspiracy, and two
weapons charges. A jury found Nave guilty on all counts. The
district court sentenced Nave to life in prison on the murder
conviction and to 75 additional years for the other convictions.
Nave argues we must reverse his convictions and sentences
because: (1) The prosecutor improperly removed a prospective
juror from the jury pool because of the juror’s race, and (2)
the police did not properly advise Nave of his Miranda rights.
Nave also argues that the evidence was insufficient to sustain
his criminal conspiracy conviction.
We conclude, however, that the prosecutor’s reasons for
striking the prospective juror were race neutral and, over-
all, persuasive. And although the Miranda warnings did not
expressly state that Nave was entitled to appointed counsel
before questioning, that information was obviously implied
from the warnings which the police read to him. Finally, our
review of the record also shows that a rational jury could
properly find beyond a reasonable doubt all the essential ele-
ments of criminal conspiracy. We affirm Nave’s convictions
and sentences.
II. BACKGROUND
1. operatioN “SheepDog”
In major cities across the country, the Federal Bureau of
Investigation (FBI) teamed up with local law enforcement
agencies to combat gang activity and sales of illegal drugs and
weapons. In Omaha, Nebraska, the FBI and the Omaha Police
Department, with other agencies, formed the Greater Omaha
Safe Streets Task Force (task force). The task force primarily
targeted violent gangs and their members. This led to inves-
tigations of the gang members’ activities, such as robberies
and drug sales. This case involved an investigation, known
as Operation “Sheepdog,” and a failed drug buy on October
22, 2010.
Operation Sheepdog targeted several violent gangs in Omaha
in an attempt to discover and shut down their drug suppliers.

480 	284 NEBRASKA REPORTS
FBI Special Agent Gregory Beninato was in charge of the
overall strategy for the operation. FBI Special Agent Paris
Capalupo assisted Beninato in planning the operation. One part
of the operation focused on drug buys at an automotive repair
shop (auto shop), located at 24th and I Streets in Omaha. A
confidential informant, Cesar Sanchez, owned the auto shop
and allowed law enforcement to use it to conduct controlled
drug buys. The FBI used another confidential informant, Jorge
Palacios, to purchase drugs and weapons, sometimes together
with Sanchez. Sanchez and Palacios were both used in the
October 22, 2010, incident.
The record shows that surveillance of the auto shop, most
notably on September 28, 2010, revealed one of the operation’s
primary targets, Abdul Vann, and several vehicles (and their
occupants) which law enforcement suspected were linked to
drug sales. These vehicles included a gray Chevrolet Impala,
a white Chrysler Sebring, and a white Yukon Denali. Cesar
Ayala-Martinez, a drug courier for a Mexican drug supplier,
drove the Denali. Ayala-Martinez had previously sold Sanchez
half a kilogram of cocaine, and Palacios, Vann, and Shawn
McGuire, another law enforcement target, were present dur-
ing that buy. The record showed that Ayala-Martinez planned
to bring another 11⁄2 kilograms of cocaine to Sanchez on
October 22.
2. the faileD D rug buy
The task force was aware of the October 22, 2010, buy and
planned to apprehend the individuals involved. Beninato held a
briefing at 9 a.m. the day of the buy with task force members.
The briefing provided the task force members with the essen-
tial information for the operation; for example, the targets, the
overall plan, whether deadly force was authorized, and the
proper medical response in case of emergency.
Following the briefing, Beninato and Capalupo met with
their confidential informant, Palacios, sometime after 11 a.m.,
gave him money to purchase cocaine, and placed recording
devices on his person. Then the task force members set up
surveillance at different locations, with the majority of the
members eventually ending up in the area around the auto shop
at 24th and I Streets.

STATE v. NAVE 	481
Cite as 284 Neb. 477
Beninato and Capalupo were watching the area from a van.
Capalupo was driving, and Beninato was monitoring the radio
traffic from other task force members and taking notes regard-
ing their observations. The task force members were look-
ing for the vehicles they had seen earlier in September—the
Impala, Sebring, and Denali.
Capalupo testified that on October 22, 2010, he saw four
African-American men “in proximity” to the Sebring. Capalupo
saw McGuire, the driver of the Sebring, get out of the vehicle
wearing all black and a baseball hat. Capalupo saw another
man, Kim Thomas, get out of the back seat of the Sebring
wearing a black, hooded sweatshirt with multicolored spots.
Capalupo saw a third man nearby wearing a white, long-
sleeved T-shirt with a khaki-colored shirt over it. Presumably,
this man was Vann. And finally, both Beninato and Capalupo
testified to seeing a fourth man, Nave, wearing a gray, hooded
sweatshirt near the Sebring.
Capalupo testified that at about 1 p.m., he saw Nave pull his
hood up, cinch it tight, and draw a pistol out of his waistband.
Beninato saw Nave enter the auto shop. The agents broadcast
this information over the radio and started to move toward the
auto shop.
The only direct evidence as to what occurred inside the
auto shop during the drug buy, both before and after Nave
entered, was the testimony of Ayala-Martinez. He testified
that Sanchez, Vann, and Palacios were all inside Sanchez’
office during the drug buy. Ayala-Martinez gave the drugs to
Sanchez, who then handed them to Vann. Vann made a tele-
phone call, and 20 minutes later, McGuire entered the office.
Vann gave the drugs to McGuire, and Vann and Palacios left.
McGuire then left, but left the drugs on a nearby table. At this
point, no money had been exchanged. Presumably, the men
had left the office under the pretense of bringing back money
to complete the sale.
About a minute later, Ayala-Martinez heard the front door
of the shop open again. Sanchez apparently glanced out of his
office window and then opened a desk drawer to get a gun.
At that point, an African-American man in a “gray sweater”
came into the office, with his hood drawn tight over his head.

482 	284 NEBRASKA REPORTS
The hooded man saw Sanchez with a gun and immediately
shot him two or three times. The hooded man then turned the
gun toward Ayala-Martinez and asked where the drugs were.
Ayala-Martinez pointed toward the drugs and told him to take
them. The hooded man opened the bag, took out the kilogram
of cocaine, and left. Ayala-Martinez grabbed the remaining half
kilogram and left.
Beninato then saw Nave exit the shop, with his hood down
and gun in hand. Beninato believed that Nave was running
toward the Sebring. At that point, Nave began firing his
weapon, apparently in the direction of Palacios, who was out-
side. Beninato broadcast a “shots fired” call over the radio and
told everyone to close in on the auto shop. Nave, McGuire,
and Thomas all got into the Sebring and fled, with task force
members in pursuit.
But the suspects’ flight was cut short when they crashed into
a pickup truck at the intersection of 20th and I Streets. The
police apprehended all three suspects and also arrested Ayala-
Martinez. Following the arrests, Beninato learned that Sanchez
had been shot. Sanchez later died from his wounds.
3. Nave iNterrogateD, C hargeD,
aND C oNviCteD
After Nave’s arrest, law enforcement took him to a hospital
because he had an elevated heart rate. Police then took Nave to
the police station and placed him in an interview room around
8:30 or 9:30 p.m. About 5 or 6 hours later, at about 2:30 a.m.,
Officer Scott Warner began interviewing Nave. Warner read
Nave his rights verbatim from the Omaha Police Department’s
prepared rights advisory form. Nave stated that he understood
those rights and would speak with Warner. Warner then ques-
tioned Nave about his reasons for being in Omaha and how he
came to be involved in the incident.
Nave attempted to answer those questions, but his answers
served only to incriminate himself. Nave stated that he had
nothing to do with the crime but that he had gone to a fast-
food restaurant in the area around 8 or 8:30 that morning. Nave
said that he ate at the restaurant, read the paper, and then was

STATE v. NAVE 	483
Cite as 284 Neb. 477
waiting for a bus to return home when he heard gunshots, saw
his friend McGuire, and got into McGuire’s car.
The record shows the fast-food restaurant that Nave said
he went to was about 87 blocks south and 46 blocks east of
where Nave was staying in Omaha. Nave also said he arrived
at the restaurant around 8:30 a.m., but the record shows that
the shooting occurred around 1 p.m. Nave said he just hap-
pened to see his friend McGuire and “dove” into his car when
he heard gunshots. Nave denied knowing McGuire’s full name
and denied there being any conversation in the vehicle after he
“dove” in. The State suggested in its case in chief and in clos-
ing arguments, persuasively, that this story was incredible and
could not be believed.
Following its investigation, the State charged Nave with first
degree murder, criminal conspiracy, use of a deadly weapon to
commit a felony, and possession of a deadly weapon by a pro-
hibited person. Before trial, Nave moved to suppress evidence
of his interrogation. Among other things, Nave alleged that
Warner failed to fully advise him of his Miranda rights. The
district court overruled the motion.
During jury selection, Nave made a Batson challenge, claim-
ing that the prosecutor had impermissibly struck a prospective
juror from the jury pool because of the juror’s race. The pros-
ecutor disagreed and set forth his reasons for striking the juror.
The trial court found those reasons both persuasive and race
neutral. Moreover, the court did not find a pattern of strikes
by the prosecutor that indicated any racial discrimination. The
court overruled Nave’s Batson challenge.
Following trial, the jury found Nave guilty on all counts.
The court sentenced Nave to life in prison on the murder con-
viction and an additional 75 years on the other convictions, to
be served consecutively.
III. ASSIGNMENTS OF ERROR
Nave assigns, renumbered and restated, that the district court
erred as follows:
(1) Overruling Nave’s Batson challenge because the pros-
ecutor peremptorily struck a prospective juror because of the
juror’s race;

484 	284 NEBRASKA REPORTS
(2) overruling Nave’s motion to suppress his interrogation
because the State did not fully advise Nave of his Miranda
rights; and
(3) accepting the jury verdict on the criminal conspiracy
charge because the evidence was insufficient to support the
conviction.
IV. ANALYSIS
1. Batson C halleNge
Nave argues that the prosecutor peremptorily struck a
juror because he was African-American and that this action
violated the Equal Protection Clause. But our review of the
record shows that the prosecutor had valid nondiscrimina-
tory reasons for the strike. We therefore find no merit to this
assigned error.
(a) Standard of Review
[1,2] We review de novo the facial validity of an attorney’s
race-neutral explanation for using a peremptory challenge as a
question of law.1 We review for clear error a trial court’s factual
determinations whether a prosecutor’s race-neutral explanation
is persuasive and whether the prosecutor’s use of a peremptory
challenge was purposefully discriminatory.2
(b) Analysis
[3] In Batson v. Kentucky,3 the U.S. Supreme Court held
that a prosecutor’s privilege to strike individual jurors through
peremptory challenges was subject to the commands of the
Equal Protection Clause. A prosecutor ordinarily is entitled to
exercise permitted peremptory challenges for any reason at all,
if that reason is related to his view concerning the outcome of
the case.4 But the Equal Protection Clause forbids the prosecu-
tor to challenge potential jurors solely because of their race.5
1 See State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
2 See id.
3 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
4 See id.
5 See id.

STATE v. NAVE 	485
Cite as 284 Neb. 477
[4,5] 	Determining 	whether 	a 	prosecutor 	impermissibly
struck a prospective juror based on race is a three-step proc-
ess.6 First, a defendant must make a prima facie showing that
the prosecutor exercised a peremptory challenge because of
race. Second, assuming the defendant made such a showing,
the prosecutor must offer a race-neutral basis for striking the
juror. And third, the trial court must then determine whether
the defendant has carried his or her burden of proving pur-
poseful discrimination.7 The third step requires the trial court
to evaluate the persuasiveness of the justification proffered by
the prosecutor.8 But the ultimate burden of persuasion regard-
ing racial motivation rests with, and never shifts from, the
opponent of the strike.9
Here, the trial court determined that Nave had presented a
prima facie case that the prosecutor had exercised the State’s
peremptory challenge because of the juror’s race. The prosecu-
tor then offered his reasons for the strike, which the trial court
determined were race neutral and persuasive. On this basis, the
trial court overruled Nave’s Batson challenge.
[6] Once a prosecutor has offered a race-neutral explanation
for the peremptory challenges and the trial court has decided
the ultimate question of intentional discrimination, the pre-
liminary issue of whether the defendant had made a prima facie
showing is moot.10 Thus, we must determine only whether the
prosecutor’s reasons were race neutral and whether the trial
court’s final determination regarding purposeful discrimination
was clearly erroneous.11
[7] The initial question whether the prosecutor’s reasons
were race neutral is a question of law that we review de novo.12
6 See, generally, id. See, also, Snyder v. Louisiana, 552 U.S. 472, 128 S. Ct.
1203, 170 L. Ed. 2d 175 (2008).
7 See Snyder, supra note 6. See, also, Thorpe, supra note 1.
8 See Thorpe, supra note 1.
9 See id.
10 See, Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d
395 (1991); Thorpe, supra note 1.
11 See id.
12 See Thorpe, supra note 1.

486 	284 NEBRASKA REPORTS
Put another way, the question is whether the stated reasons, on
their face, were inherently discriminatory. In making that deter-
mination, we do not consider whether the prosecutor’s reasons
are persuasive. Indeed, while the prosecutor’s reasons must be
comprehensible, they need not be persuasive or even plausible,
if they are not inherently discriminatory.13
The prosecutor offered five reasons, restated, for his strike:
• The juror indicated that he did not trust news reports and
that such reports were inaccurate and meant to keep peo-
ple scared.
• The juror explained that he had a previous run-in with law
enforcement when he was falsely accused of possession of
marijuana. While the juror did not harbor distrust toward all
law enforcement, the juror felt that some law enforcement
officers abused their power.
• The juror had a family vacation planned during the trial
which he would have to cancel if selected. Although the
juror indicated that he was willing to do so, the prosecutor
explained that he did not want someone on the jury who was
missing a family vacation.
• The juror approached the prosecutor during a break in the
jury selection to let him know that he wanted to serve on the
jury. The prosecutor had never had a juror ask to serve on a
2-week jury trial and was concerned about the juror’s motiva-
tion for the request.
• The juror had made a couple of comments during jury selec-
tion which made it seem (at least to the prosecutor) that
the juror was not taking the proceedings as seriously as he
should have.
We conclude that these reasons, on their face, are racially
neutral.
Moving on to the third and final step of the analysis, Nave
must prove that the trial court clearly erred in finding no pur-
poseful discrimination by the prosecutor. In support of that
position, Nave argues that the prosecutor’s reasons were not
13 See id. See, also, Jacox v. Pegler, 266 Neb. 410, 665 N.W.2d 607 (2003),
quoting Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834
(1995).

STATE v. NAVE 	487
Cite as 284 Neb. 477
persuasive and were simply a pretext to hide the prosecu-
tor’s discriminatory intent to strike the juror because he was
African-American.
[8] The trial court, however, found that the prosecutor’s rea-
sons “form[ed] a persuasive basis for exercising [the State’s]
peremptory challenge, independent of race.” And although the
trial court did not go into great depth regarding why it found
the prosecutor’s reasons persuasive, we review its determina-
tion for clear error.14 This is because of the pivotal role that
the trial court plays in evaluating Batson claims.15 The U.S.
Supreme Court has explained that the third step of a Batson
inquiry involves evaluating the prosecutor’s credibility and
that the best evidence of discriminatory intent “‘often will be
the demeanor of the attorney who exercise[d] the challenge.’”16
Such credibility determinations lie within the peculiar province
of the trial judge and, “‘in the absence of exceptional circum-
stances,’” require deference to the trial court.17 And this defer-
ence is reflected in our standard of review.18
Our review of the record and evaluation of the prosecutor’s
reasons do not provide the “exceptional circumstances” neces-
sary to reverse the trial court’s determination. To be sure, not
all of the prosecutor’s reasons are particularly persuasive—
why the juror’s distrust of the media merits being stricken from
the jury is unclear, considering that there was no evidence or
testimony related to the news in any way. And we do not agree
with the prosecutor that the juror’s responses indicated that he
did not give the proceedings the solemnity they deserved. On
the contrary, the juror’s responses and overall active participa-
tion in the jury selection process show that he took his civic
duty seriously.
But we find the prosecutor’s other stated reasons persua-
sive. The prosecutor indicated that he was concerned that the
14 See id.
15 See Snyder, supra note 6.
16 Id., 552 U.S. at 477.
17 Id.
18 See Thorpe, supra note 1.

488 	284 NEBRASKA REPORTS
juror might distrust law enforcement which, of course, could
be detrimental to the prosecutor’s case because so many of
his witnesses were law enforcement personnel. This concern
stemmed from the juror’s answer to a question during jury
selection regarding feelings toward law enforcement. The juror
explained, “Well, I think they, you know, protect and serve, but
also I think there are some who, you know, abuse their own
power so things can get twisted and turned around all the time.
I mean, that’s happened to me before.” The juror explained
further that he had been falsely accused and penalized for
possession of marijuana and that he had to go through a diver-
sion program.
The trial court, in restating the prosecutor’s reasons for
the strike, characterized the juror’s responses as indicating
a “heightened distrust of law enforcement personnel.” This
implicit finding of fact was not clearly wrong. Although the
juror later explained that he would not hold it against law
enforcement in general and that he was an open-minded indi-
vidual, the prosecutor remained skeptical. And where law
enforcement personnel played such a critical role in the pros-
ecution’s case, it would be a risk for the prosecution not to
exercise a peremptory strike on a juror who showed some
mistrust in law enforcement personnel. The trial court was not
clearly wrong in finding this reason for striking the juror to
be persuasive.
We also find the prosecutor’s other stated reasons persua-
sive. At the beginning of jury selection, the juror stated that
he had a family vacation planned during the time of the trial,
but that he could probably reschedule it to allow for jury duty.
Even so, the prosecutor explained that he did not “want some-
one here who [was] going to be missing a family vacation just
to sit on this jury.” Contrary to Nave’s assertion, we do not find
this reason to be pretextual. The record shows that the prosecu-
tor focused on already-planned events with other non-African-
American prospective jurors, and whether it would work a
hardship on the juror to miss them, or whether they could be
rescheduled. In fact, the prosecutor originally moved to dis-
miss some of the jurors for cause because of planned events
scheduled during the expected 21⁄2-week trial. It appears from

STATE v. NAVE 	489
Cite as 284 Neb. 477
the record that the prosecutor did not move to strike the juror
involved here for cause because he was amenable to resched-
uling his vacation. But this does not mean that the prosecutor
could not later peremptorily strike him for fear that missing his
vacation could be a distraction during trial. The court was not
clearly wrong in finding this reason persuasive.
The 	prosecutor 	was 	also 	concerned 	about 	the 	juror’s
approaching him during a break in jury selection, indicating
he had something to say. The record shows that the judge,
attorneys, and the juror met in the judge’s chambers where
the juror explained that he wanted to serve on the jury and
that he wanted his voice to be heard. The juror noted that he
was the only African-American male in the jury pool and that
he thought a jury should include a multitude of races. The
prosecutor explained that he had “never had a juror actually
approach [him] to let [him] know that they [sic] wanted to
serve on a long jury case” and, essentially, that it made the
prosecutor uneasy and concerned that the juror might have
some hidden agenda. The prosecutor’s concern was plausible,
and the burden rests on Nave to show a discriminatory pur-
pose.19 He has not done so.
[9] We also note that both the U.S. Supreme Court and
this court have considered the relative number or percent-
age of African-American jurors peremptorily struck to eval-
uate whether a prosecutor’s stated reasons for a strike were
pretextual. For example, in Miller-El v. Dretke,20 the Court
concluded:
If anything more is needed for an undeniable expla-
nation of what was going on, history supplies it. The
prosecutors took their cues from a 20-year-old manual of
tips on jury selection, as shown by their notes of the race
of each potential juror. By the time a jury was chosen,
the State had peremptorily challenged 12% of qualified
nonblack panel members, but eliminated 91% of the
black ones.
19 See id.
20 Miller-El v. Dretke, 545 U.S. 231, 266, 125 S. Ct. 2317, 162 L. Ed. 2d 196
(2005) (emphasis supplied).

490 	284 NEBRASKA REPORTS
And in State v. Gutierrez,21 we recognized some factors
which courts had considered in evaluating the third step of
the Batson analysis. These included (1) whether members of
the relevant racial or ethnic group served unchallenged on
the jury and whether the striking party struck as many of the
relevant racial or ethnic group from the venire as it could, (2)
whether there is a substantial disparity between the percentage
of a particular race or ethnicity struck and the percentage of its
representation in the venire, and (3) whether there was a sub-
stantial disparity between the percentage of its representation
on the jury.22
Here, the prosecutor peremptorily challenged only two
of 	the 	four 	prospective African-American 	jurors—one 	of
which Nave admitted was proper. Additionally, one African-
American individual served on the jury, and Nave struck the
other prospective African-American juror. These facts indi-
cate that the prosecutor’s reasons for striking the juror were
not pretextual.
We conclude that the district court did not clearly err in
overruling Nave’s Batson challenge.
2. the M iranda WarNiNgS
Were SuffiCieNt
Warner interrogated Nave after his arrest. Warner asked
Nave his name and address and then read Nave his Miranda
rights from the Omaha Police Department’s printed “Rights
Advisory Form,” which consisted of six separate statements:
Q. I would like to advise you that I am a Police Officer.
Do you understand that?
. . . .
Q. You have a right to remain silent and not make any
statements or answer any of my questions. Do you under-
stand that?
. . . .
Q. Anything that you may say can and will be used
against you in court. Do you understand that?
21 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
22 See id.

STATE v. NAVE 	491
Cite as 284 Neb. 477
. . . .
Q. You have the right to consult with a lawyer and
have the lawyer with you during the questioning. Do you
understand that?
. . . .
Q. If you cannot afford a lawyer, the court will appoint
one to represent you. Do you understand that?
. . . .
Q. Knowing your rights in this matter, are you willing
to talk to me now?
Warner read these rights to Nave verbatim from the form.
Nave responded that he understood each statement, and Warner
recorded his responses on the form.
Nave argues that the above warnings were deficient because
they failed to fully advise him of his Miranda rights and that
therefore the court should have suppressed his statements
made during the subsequent interrogation. Specifically, Nave
claims that the police did not inform him that he had a right
to appointed counsel both before and during interrogation and
that the police did not inform him that he could exercise that
right at any time. But because the warnings provided are suf-
ficient under Miranda v. Arizona,23 we find no merit to this
assigned error.
(a) Standard of Review
[10] In reviewing a motion to suppress a statement based
on its claimed involuntariness—including claims that law
enforcement procured it by violating the safeguards estab-
lished by the U.S. Supreme Court in Miranda—we apply a
two-part standard of review. Regarding historical facts, we
review the trial court’s findings for clear error. Whether those
facts meet constitutional standards, however, is a question
of law, which we review independently of the trial court’s
determination.24
23 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
24 State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012). See State v.
Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004).

492 	284 NEBRASKA REPORTS
(b) Analysis
[11] In Miranda, the U.S. Supreme Court sought to ensure
that the Fifth Amendment privilege against compelled self-
incrimination was protected from the inherently compelling
pressures of custodial interrogation.25 To do so, the Court
required law enforcement to give a particular set of warnings
to a person in custody before interrogation: that he has the right
to remain silent, that any statement he makes may be used as
evidence against him, and that he has the right to an attorney,
either retained or appointed.26
We recognize that Miranda contains language to support
Nave’s argument. For example, at one point the Court explains
that “if police propose to interrogate a person they must make
known to him that he is entitled to a lawyer and that if he can-
not afford one, a lawyer will be provided for him prior to any
interrogation.”27 But Miranda also contains language that does
not support Nave’s argument. For example, the Court explicitly
held that “an individual held for interrogation must be clearly
informed that he has the right to consult with a lawyer and to
have the lawyer with him during interrogation under the system
for protecting the privilege we delineate today.”28 That hold-
ing does not include any “before” or “prior to” type language.
Thus, this issue is not resolved just by examining the language
of the Miranda opinion.
[12] 	Since 	Miranda, 	though, 	the 	Court 	has 	repeatedly
emphasized that while the particular rights delineated under
that decision are absolute, the language used to apprise sus-
pects of those rights is not. In California v. Prysock,29 the Court
explained that it had “never indicated that the ‘rigidity’ of
Miranda extend[ed] to the precise formulation of the warnings
given.” The Court emphasized that “no talismanic incantation
25 See, Miranda, supra note 23; Bauldwin, supra note 24.
26 See id.
27 Miranda, supra note 23, 384 U.S. at 474 (emphasis supplied).
28 Id., 384 U.S. at 471.
29 California v. Prysock, 453 U.S. 355, 359, 101 S. Ct. 2806, 69 L. Ed. 2d
696 (1981).

STATE v. NAVE 	493
Cite as 284 Neb. 477
was required to satisfy [the] strictures [of Miranda].”30 Similarly,
in Duckworth v. Eagan31 the Court said that “[r]eviewing
courts . . . need not examine Miranda warnings as if constru-
ing a will or defining the terms of an easement. The inquiry is
simply whether the warnings reasonably ‘conve[y] to [a sus-
pect] his rights as required by Miranda.’” And most recently,
in Florida v. Powell,32 the Court reaffirmed these principles,
explaining that while “[t]he four warnings Miranda requires
are invariable, [the] Court has not dictated the words in which
the essential information must be conveyed.”
Nonetheless, Nave argues that the warning must expressly
indicate that an indigent’s right to counsel applies both before
and during interrogation. Nave cites to two Arkansas cases
for support, but neither is on point. In Wilkerson v. State,33 the
issue was not whether “before” or “prior to” type language
must be expressly included, but only whether the given warn-
ings advised the suspect that he would be appointed counsel
if he could not afford an attorney. The Arkansas Supreme
Court found the warning sufficient because it advised the
suspect that if he were “‘unable to employ a lawyer,’” then
one would be appointed for him.34 Similarly, in Mayfield v.
State,35 the Arkansas Supreme Court found only that “[t]he
warning . . . did not convey to the appellant the fact that
he could have a lawyer free of charge” and was therefore
deficient. The Mayfield court did not address the issue Nave
presents here.
Our research, however, reveals some support, though slight,
for Nave’s position. For example, in U.S. v. Wysinger,36 the
11th Circuit stated:
30 Id.
31 Duckworth v. Eagan, 492 U.S. 195, 203, 109 S. Ct. 2875, 106 L. Ed. 2d
166 (1989) (citation omitted).
32 Florida v. Powell, 559 U.S. 50, 130 S. Ct. 1195, 1204, 175 L. Ed. 2d 1009
(2010).
33 Wilkerson v. State, 365 Ark. 349, 229 S.W.3d 896 (2006).
34 Id. at 354, 229 S.W.3d at 900.
35 Mayfield v. State, 293 Ark. 216, 222, 736 S.W.2d 12, 15 (1987).
36 U.S. v. Wysinger, 683 F.3d 784, 799 (11th Cir. 2012) (emphasis supplied).

494 	284 NEBRASKA REPORTS
The agent’s divergence from the familiar script would put
a suspect to a false choice between talking to a lawyer
before questioning or having a lawyer present during
questioning, when Miranda clearly requires that a sus-
pect be advised that he has the right to an attorney both
before and during questioning.
And as stated earlier, there is some support for Nave’s position
in the language of Miranda itself.37
But 	we 	are 	not 	persuaded. 	Other 	courts 	which 	have
addressed this exact issue under similar factual circumstances
have found the warnings to be sufficient.38 For example, in
People of Territory of Guam v. Snaer,39 law enforcement offi-
cers gave this advisement: “‘You have a right to consult with
a lawyer and to have a lawyer present with you while you
are being questioned. If you want a lawyer but are unable to
pay for one, a lawyer will be appointed to represent you free
of any cost to you.’” The appellant contended that although
the warnings clearly conveyed his right to an attorney dur-
ing questioning, they did not convey his right to an attorney
before questioning. Citing Prysock,40 the Ninth Circuit held
that no specific words were required and noted that the warn-
ings explicitly advised the suspect that he had a right to con-
sult with a lawyer and to have a lawyer present while being
questioned.41 The court concluded that “the first part of that
sentence read in the context of the latter half of the sentence
. . . adequately convey[ed] notice of the right to consult with
an attorney before questioning.”42
37 See Miranda, supra note 23.
38 See People of Territory of Guam v. Snaer, 758 F.2d 1341 (9th Cir. 1985).
See, also, State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (1987); State v.
Renfro, No. CA2011-07-142, 2012 Ohio App. LEXIS 2479 (Ohio App.
June 25, 2012).
39 Snaer, supra note 38, 758 F.2d at 1342.
40 Prysock, supra note 29.
41 See Snaer, supra note 38.
42 Id. at 1343.

STATE v. NAVE 	495
Cite as 284 Neb. 477
In addition, our case law supports the conclusion that these
warnings were adequate. In State v. Bauldwin,43 we explained
that Miranda required police officers to notify a suspect that
“he has a right to an attorney, either retained or appointed,” but
made no mention of any required temporal element. In State
v. Williams,44 we similarly explained that police officers must
tell suspects who are interrogated while in police custody that
“they are entitled to the presence of an attorney, either retained
or appointed, at the interrogation.” Again, we did not require
officers to make an express statement that an indigent has a
right to an attorney before interrogation. And we further stated
that there was “nothing magic about the particular words” used
to inform the suspect of the Miranda rights.45
We conclude that the officer’s failure to expressly state that
Nave was entitled to appointed counsel before questioning was
immaterial. When police told Nave that he had “the right to
consult with a lawyer and have the lawyer with [him] during
the questioning,” that statement impliedly included the right
to consult with the lawyer before the questioning. And that is
enough under Miranda.
[13] Finally, Nave also apparently argues that the warn-
ings were defective for failing to inform Nave that he could
exercise his right to counsel at any time. Although a suspect
can exercise his Miranda rights at any point during custodial
interrogation,46 Nave cites to no authority requiring a warning
to that effect. Miranda contains no language requiring such a
warning,47 and other courts have rejected similar positions.48
We likewise reject it. The warnings in this case were sufficient
under Miranda.
43 Bauldwin, supra note 24, 283 Neb. at 688, 811 N.W.2d at 279.
44 State v. Williams, 269 Neb. 917, 922, 697 N.W.2d 273, 278 (2005).
45 Id.
46 See, generally, Miranda, supra note 23.
47 See id.
48 See, e.g., United States v. Davis, 459 F.2d 167 (6th Cir. 1972); U.S. v.
Ellis, 125 F. Appx. 691 (6th Cir. 2005). See, also, 2 Wayne R. LaFave et
al., Criminal Procedure § 6.8(d) (2007).

496 	284 NEBRASKA REPORTS
3. SuffiCieNCy of the eviDeNCe
Nave argues that there is insufficient evidence to support his
conviction for criminal conspiracy. Specifically, Nave argues
that outside of Nave’s admitting he knew McGuire, there was
no evidence linking Nave to the other actors involved in these
events. But our review of the record shows otherwise, and a
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. This assigned error has
no merit.
(a) Standard of Review
[14] When reviewing the sufficiency of the evidence to sup-
port a conviction, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.49
(b) Analysis
[15] The State charged Nave with criminal conspiracy; spe-
cifically, that he conspired to commit the crime of unlawful
possession with intent to distribute a controlled substance. A
person is guilty of criminal conspiracy if the person intends
to promote or facilitate the commission of a felony, agrees
with one or more persons to commit that felony, and then the
person, or a coconspirator, commits an overt act furthering
the conspiracy.50
The State claimed that Nave conspired to possess and then
distribute cocaine. In relevant part, Neb. Rev. Stat. § 28-416
(Cum. Supp. 2010) makes it unlawful “for any person know-
ingly or intentionally . . . [t]o manufacture, distribute, deliver,
dispense, or possess with intent to manufacture, distribute,
deliver, or dispense a controlled substance.” Cocaine is a con-
trolled substance.51 So we must affirm Nave’s conviction if
49 See State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).
50 See Neb. Rev. Stat. § 28-202 (Reissue 2008).
51 See Neb. Rev. Stat. §§ 28-405(a)(4) [Schedule II] (Supp. 2011) and
28-416(7) and (8).

STATE v. NAVE 	497
Cite as 284 Neb. 477
there is evidence from which a rational jury could find beyond
a reasonable doubt that he intended to promote or facilitate
the crime of possession with intent to distribute cocaine, that
he agreed with others to commit that crime, and that he or
another coconspirator committed an overt act in furtherance of
the conspiracy.
A rational jury could conclude beyond a reasonable doubt
that Nave intended to promote or facilitate the crime. Nave
stipulated that chemical tests of his hands on October 22,
2010, came back positive for cocaine. Ayala-Martinez testi-
fied that Nave came into the auto shop, shot Sanchez, and
then asked where the drugs were. Ayala-Martinez testified
that Nave grabbed the kilogram of cocaine and left. Beninato
testified that as Nave ran out of the auto shop, a white pow-
der, later identified as cocaine, was found in a trail from
the shop to where he saw Nave get in the Sebring. Law
enforcement later searched the Sebring and found a brick of
cocaine, weighing about 900 grams, in the back seat. From
these facts, a rational jury could conclude that Nave had pos-
sessed cocaine.
[16] A rational jury could also find beyond a reasonable
doubt that Nave not only possessed the cocaine, but that he
intended to distribute it. The quantity of drugs possessed is
relevant to this inquiry.52 The brick of cocaine weighed about
900 grams. Testimony showed that an ordinary drug buy was
for much less, typically 14 or 28 grams per buy. Testimony also
showed that a drug user would inject or snort a half gram or
less of cocaine per use. At the time, a kilogram of cocaine cost
$20,000 to $27,000. A rational jury could find that such a large
amount of cocaine was not just for personal use, but that Nave
intended to distribute the drug.
But Nave argues that there is no evidence to show that he
agreed with others to commit the crime and that therefore, he
could not be guilty of conspiracy. But the record contradicts
that assertion. Nave got into the same car as McGuire and
Thomas, immediately after the crime took place. Before the
theft of the cocaine, law enforcement surveillance described
52 See State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

498 	284 NEBRASKA REPORTS
the four individuals—Nave, Vann, McGuire, and Thomas—as
being “in proximity” to each other and the Sebring. One wit-
ness also testified that Vann and Thomas had been whispering
back and forth near the auto shop and that they “met” with
Nave before he entered the shop.
Furthermore, the fact that Nave entered the auto shop spe-
cifically demanding the drugs indicates that he was working
with the other individuals. Although McGuire and Vann had
purchased drugs from Sanchez through Ayala-Martinez before,
there is no evidence that Nave was involved in the prior deal.
If Nave had not been conspiring with the others to steal and
eventually distribute the cocaine, then he likely would not have
known that the October 22, 2010, drug buy was going to take
place. These facts presented sufficient evidence for a jury to
conclude beyond a reasonable doubt that Nave worked with
others to commit the crime.
Finally, a rational jury could obviously conclude beyond a
reasonable doubt that Nave’s actions constituted an “overt act”
in furtherance of the conspiracy. As such, the evidence is suf-
ficient to uphold Nave’s conviction for criminal conspiracy.
We affirm Nave’s convictions and sentences.
affirMeD.
heaviCaN, C.J., not participating.
State of NebraSka, appellee, v.
DaNiel C. M iller, appellaNt.
822 N.W.2d 360
Filed October 12, 2012. 	No. S-12-019.
1. Sentences: Due Process: Appeal and Error. Whether the district court’s resen-
tencing of a defendant following a successful appeal violates the defendant’s due
process rights presents a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
3. Due Process: New Trial: Convictions: Sentences. Due process of law requires
that vindictiveness against a defendant for having successfully attacked his first
conviction must play no part in the sentence he receives after a new trial.
4. Constitutional Law: Due Process: Convictions: Sentences: Appeal and Error.
Since the fear of vindictiveness may unconstitutionally deter a defendant’s