State v. Watson

STATE v. WATSON 	497
Cite as 285 Neb. 497
district court’s order in which it rejected the entirety of the
Hendersons’ claims.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
cAssel, J., not participating.
stAte of nebrAskA, Appellee, v.
Jerry wAtson, AppellAnt.
827 N.W.2d 507
Filed March 15, 2013. 	No. S-11-912.
1. Constitutional Law: Witnesses: Appeal and Error. An appellate court
reviews de novo a trial court’s determination of the protections afforded by
the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and
reviews the underlying factual determinations for clear error.
2. Constitutional Law: Due Process. The determination of whether procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
3. Judgments: Appeal and Error. On questions of law, a reviewing court has an
obligation to reach its own conclusions independent of those reached by the
lower courts.
4. Criminal Law: Due Process: Time. A criminal defendant’s claim of denial of
due process resulting from preindictment delay presents a mixed question of law
and fact.
5. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact.
6. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within
the trial court’s discretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.
7. Constitutional Law: Witnesses: Appeal and Error. The Sixth Amendment to
the U.S. Constitution guarantees the right of an accused in a criminal prosecution
to be confronted with the witnesses against him or her, and the main and essential
purpose of confrontation is to secure the opportunity for cross-examination.
8. Criminal Law: Constitutional Law. The federal Constitution guarantees crimi-
nal defendants a meaningful opportunity to present a complete defense.
9. Constitutional Law: Criminal Law: Due Process: Time. The Due Process
Clause of the Fifth Amendment protects a criminal defendant against unreason-
able preindictment delay.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

498 	285 NEBRASKA REPORTS
10. ____: ____: ____: ____. Dismissal under the Due Process Clause is proper only
if a defendant shows (1) the prosecuting authority’s delay in filing charges caused
substantial prejudice to the defendant’s right to a fair trial and (2) the delay was
an intentional device to gain an unfair tactical advantage over the defendant.
11. 	Trial: Prosecuting Attorneys: Appeal and Error. When a prosecutor’s conduct
was improper, an appellate court considers the following factors in determin-
ing whether the conduct prejudiced the defendant’s right to a fair trial: (1)
the degree to which the prosecutor’s conduct or remarks tended to mislead or
unduly influence the jury, (2) whether the conduct or remarks were extensive or
isolated, (3) whether defense counsel invited the remarks, (4) whether the court
provided a curative instruction, and (5) the strength of the evidence supporting
the conviction.
12. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to
grant a mistrial for prosecutorial misconduct, the defendant must show that a
substantial miscarriage of justice has actually occurred.
Appeal from the District Court for Douglas County: peter
c. bAtAillon, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heAvicAn, c.J., wright, connolly, stephAn, mccormAck,
miller-lermAn, and cAssel, JJ.
wright, J.
NATURE OF CASE
In November 2010, Jerry Watson was charged with the
1978 murder of Carroll Bonnet. The prosecution was the result
of an investigation by the Omaha Police Department’s “cold
case” homicide unit. A jury found Watson guilty of first degree
murder and use of a deadly weapon to commit a felony. He
was sentenced to life imprisonment for the first degree murder
conviction and 10 to 20 years’ imprisonment for the conviction
of use of a deadly weapon to commit a felony.
Because roughly 33 years had passed since the murder,
Watson claims that he was denied his right to confront wit-
nesses and present a complete defense. Many of the alleged
original witnesses were dead or unavailable. He also claims
that there was insufficient evidence to convict him and that

STATE v. WATSON 	499
Cite as 285 Neb. 497
prosecutorial misconduct during the questioning of a witness
required the district court to sustain his motion for mistrial.
We affirm.
SCOPE OF REVIEW
[1] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution and
reviews the underlying factual determinations for clear error.
State v. Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012).
[2,3] The determination of whether procedures afforded an
individual comport with constitutional requirements for pro-
cedural due process presents a question of law. State v. Hotz,
281 Neb. 260, 795 N.W.2d 645 (2011). On questions of law, a
reviewing court has an obligation to reach its own conclusions
independent of those reached by the lower courts. Id.
[4] A criminal defendant’s claim of denial of due process
resulting from preindictment delay presents a mixed ques-
tion of law and fact. State v. Glazebrook, 282 Neb. 412, 803
N.W.2d 767 (2011). When reviewing a trial court’s determina-
tion of a claim of denial of due process resulting from prein-
dictment delay, an appellate court will review determinations
of historical fact for clear error, but will review de novo the
trial court’s ultimate determination as to whether any delay by
the prosecutor in bringing charges caused substantial prejudice
to the defendant’s right to a fair trial. Id.
[5] 	In 	reviewing 	a 	sufficiency 	of 	the 	evidence 	claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for
the finder of fact. State v. Howell, 284 Neb. 559, 822 N.W.2d
391 (2012). 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 reasonable
doubt. Id.
[6] Whether to grant a mistrial is within the trial court’s
discretion, and we will not disturb its ruling unless the court

500 	285 NEBRASKA REPORTS
abused its discretion. State v. Dixon, 282 Neb. 274, 802 N.W.2d
866 (2011).
FACTS
The victim, Bonnet, was a 61-year-old male living alone in
an Omaha, Nebraska, apartment. On October 17, 1978, Bonnet
had failed to report for work 2 days in a row. A friend called
the manager of Bonnet’s apartment complex to check on him.
When Bonnet did not answer his door, the manager looked
through the mailslot in the door and saw Bonnet lying on the
floor. He appeared to be sick or injured. The manager called
an ambulance.
The Omaha Fire Department responded to the call. They
entered the apartment forcibly after they were initially unable
to gain access. The fire team found Bonnet naked and lying
face down in his apartment. He had suffered one stab wound
to his abdomen. An autopsy revealed he died from the
stab wound.
After Bonnet was discovered, Omaha police secured the
area and began processing the apartment as a crime scene. The
apartment was described as being “orderly and neat” before
the crimes. Crime scene investigators collected evidence from
the apartment and photographed the scene. They found that the
telephone cord had been severed, and there were newspapers
on a coffee table and on the floor. Three towels were found
near the victim that contained fecal matter and hair. Beer cans
were taken from a trash can and the kitchen sink. There was a
note claiming to have been written by the killer that stated one
piece of evidence had been left at the crime scene. The note
ended with a derogatory statement to the police. Crime scene
investigators were unable to find Bonnet’s wallet or any cash
inside the apartment.
Fingerprints and palmprints were found on the bathroom
door, the medicine cabinet, beer cans, the coffee table, and the
telephone. Some of those fingerprints were eventually matched
to Watson. Other fingerprints found at the scene were never
matched to a particular person.
On October 19, 1978, Bonnet’s car was discovered aban-
doned in Cicero, Illinois. Stolen Illinois license plates were on

STATE v. WATSON 	501
Cite as 285 Neb. 497
the car. On October 16, the license plates had been reported
stolen. Illinois police collected evidence from inside the car,
including cigarette butts. Only two fingerprints were identifi-
able, and one of them belonged to Bonnet. The other print was
not identified.
Police conducted interviews and investigated a suspect, but
in 1978, no one was charged with the crimes. In March 2009,
Officer Douglas Herout of the Omaha Police Department was
assigned to the case while working in the cold case homicide
unit. Shortly before Herout was assigned the case, the crime
laboratory had reviewed the fingerprints taken in 1978 from
the crime scene. Using technology that was not available in
1978, one of the fingerprints was matched to Watson.
Herout 	examined 	the 	physical 	evidence 	obtained 	from
the crime scene in 1978. Certain items were taken to the
University of Nebraska Medical Center for DNA testing that
was not available in 1978. These items included a beer can,
cigarette butts, the contents of the living room wastebasket,
the contents of the kitchen wastebasket, and the severed tele-
phone cord. The three towels found near Bonnet that contained
fecal matter attributed to Bonnet, as well as hair fibers, were
also tested.
Herout’s investigation disclosed that Watson grew up in
Cicero and had moved many times as an adult. He had a rela-
tive who lived in Omaha that he visited sometime in the fall
of 1978. After the murder, Watson lived in Missouri and in
Florida under alias names.
On December 2, 2009, Herout and another officer traveled
to Illinois to obtain DNA evidence, fingerprints, and palmprints
from Watson. They also conducted interviews with family
members, including Watson’s mother.
On November 15, 2010, Watson was charged with first
degree murder and use of a deadly weapon to commit a felony.
An amended information was filed on July 11, 2011, charging
Watson with first degree murder, either premeditated or as a
felony murder during the attempt or commission of a robbery,
and use of a deadly weapon to commit a felony.
A jury trial was held August 16 through 25, 2011. Because
of the length of time that had passed from the commission of

502 	285 NEBRASKA REPORTS
the crimes in 1978 to the date of trial, only a few witnesses
were available who were directly connected with the case.
An Omaha firefighter who was on the rescue squad called to
Bonnet’s apartment had observed Bonnet lying naked on the
living room floor. The rescue squad determined that Bonnet
was dead, and thinking that the apartment could be a crime
scene, they called the police. An Omaha Police Department
crime laboratory technician photographed and recovered items
at the scene, including empty beer cans, several towels, and a
note taunting police that was apparently left by the killer. The
technician lifted a number of fingerprints from various areas in
the apartment.
The pathologist who had performed the autopsy on Bonnet’s
body determined that the cause of death was a single stab
wound to the abdomen. The pathologist opined that at the
time of the autopsy, Bonnet had been dead for over 48
hours. An evidence technician employed by the Cicero Police
Department in 1978 testified that he had been assigned to
collect evidence from a car recovered with stolen license
plates. The car belonged to Bonnet and was found abandoned
in Cicero. He collected items from the car, including several
cigarette butts and fingerprints from inside the car. One fin-
gerprint belonged to Bonnet, and the other was unidentified.
It did not match the Omaha Police Department’s chief suspect
at the time.
The remainder of the State’s evidence was circumstantial.
The State called witnesses regarding the DNA and fingerprint
evidence and its chain of custody. A senior crime labora-
tory technician with the Omaha Police Department testified
that seven fingerprints were found at Bonnet’s apartment and
searched through the department’s fingerprint system. Two
belonged to Watson, while the other prints were identified as
Bonnet’s or remained unidentified. One of Watson’s prints
was on the bathroom door, and the other was on the bathroom
medicine cabinet. No prints attributable to Watson were found
in Bonnet’s car.
A forensic DNA analyst at the University of Nebraska
Medical Center testified that DNA found on some of the
cigarette butts located in the apartment and in Bonnet’s car

STATE v. WATSON 	503
Cite as 285 Neb. 497
was from Watson. She also testified that a hair found on one
of the towels located near Bonnet’s body was from Watson.
The DNA profile from the hair could be found in 1 in 37.6
million Caucasians, 1 in 87.4 million African-Americans, and
1 in 17.5 million American Hispanics. The State argued that
the DNA and fingerprint evidence indicated the likelihood
that Watson was in Bonnet’s apartment and car at some point
in time.
Herout testified that he began to investigate Watson as a
suspect in 2009. A crime laboratory technician with the Omaha
Police Department informed him that fingerprints from the
crime scene matched Watson’s prints. Herout traced Watson’s
background and discovered that he grew up in Illinois, lived in
Mississippi in 1977, and lived in Florida in 1979 under alias
names. It was stipulated that Watson’s only tie to Nebraska was
a relative who lived in Omaha “at some point” and that Watson
had visited in the fall of 1978.
As part of the 2009 investigation, Herout reviewed all evi-
dence assigned to the Bonnet homicide that was retained in the
police property room. This included reopening and re-marking
all evidence taken from Bonnet’s apartment and car at the time
of the murder. Herout testified about some of the problems
inherent in preservation of cold case physical evidence. For
example, the taunting note written by the killer left at the scene
had been sent to the U.S. Secret Service for handwriting analy-
sis. The property logs and a Secret Service report indicated that
it was returned, but at the time of trial, the note was missing.
Packaged with a couch cushion from Bonnet’s apartment were
also pieces of evidence, including sheets, a pillowcase, and a
“Def Leppard” T-shirt, that were not consistent with evidence
collected from the crime scene in 1978.
All the purported defense witnesses were either deceased or
unavailable. Eleven police reports from witnesses who were
interviewed by police in 1978 were read into evidence by
defense counsel. These police reports indicated that Bonnet
frequented local bars and would often bring men back to his
apartment after buying them drinks. Sometimes he allowed
these men to stay with him for periods of time, and he would
let them use his car.

504 	285 NEBRASKA REPORTS
The police had several suspects in the early stages of the
investigation, but no charges were filed against them. Two
suspects had lived in Bonnet’s apartment for a time before his
death, and one of them had a key to Bonnet’s car at the time
of Bonnet’s death. The defense argued that because these two
individuals had access to Bonnet’s apartment and car, there
was no evidence that Watson was ever in the apartment or car
at the same time as Bonnet and that Watson’s DNA could have
been left in the apartment or car while he was with either of
the two suspects.
The jury found Watson guilty of first degree murder and use
of a deadly weapon to commit a felony. He was sentenced to
life imprisonment for the first degree murder conviction and 10
to 20 years’ imprisonment for the conviction of use of a deadly
weapon to commit a felony.
ASSIGNMENTS OF ERROR
Watson claims, summarized and restated, that (1) the district
court erred when it overruled his motion to dismiss the charges
because, due to the 33-year delay in prosecuting this case, the
trial violated his right to confrontation, right to present a com-
plete defense, and right to a fair trial with due process of law;
(2) there was insufficient evidence to support the verdicts as a
matter of law; and (3) the district court erred by overruling his
motion for mistrial based on misconduct of the prosecutor dur-
ing the examination of one of the witnesses.
ANALYSIS
confrontAtion clAuse
[7] Watson claims the 33-year delay in bringing the charges
against him violated his right to confront the witnesses against
him and denied him due process and a fair trial. The Sixth
Amendment to the U.S. Constitution guarantees the right of
an accused in a criminal prosecution to be confronted with
the witnesses against him or her, and the main and essential
purpose of confrontation is to secure the opportunity for cross-
examination. State v. Sorensen, 283 Neb. 932, 814 N.W.2d
371 (2012). Watson had the opportunity to cross-examine all
the State’s witnesses, and he did so extensively. He attempted

STATE v. WATSON 	505
Cite as 285 Neb. 497
to bring out problems with chain of custody and credibility of
the evidence. He has not shown that he was denied the right to
confront the witnesses the State presented against him.
fAir triAl with due
process of lAw
[8] The federal Constitution guarantees criminal defendants
a meaningful opportunity to present a complete defense. State
v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011). The determina-
tion of whether procedures afforded an individual comport with
constitutional requirements for procedural due process presents
a question of law. State v. Hotz, 281 Neb. 260, 795 N.W.2d 645
(2011). On questions of law, a reviewing court has an obliga-
tion to reach its own conclusions independent of those reached
by the lower courts. Id.
[9,10] The Due Process Clause of the Fifth Amendment pro-
tects a criminal defendant against unreasonable preindictment
delay. State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767
(2011). But dismissal under the Due Process Clause is proper
only if a defendant shows (1) the prosecuting authority’s delay
in filing charges caused substantial prejudice to the defendant’s
right to a fair trial and (2) the delay was an intentional device
to gain an unfair tactical advantage over the defendant. State v.
Glazebrook, supra.
We have stated that a defendant bears the burden to show
actual prejudice, and not just prejudice due to dimmed memo-
ries, inaccessible witnesses, and lost evidence. See id. Watson
argues that he suffered prejudice because he was deprived of
the ability to call witnesses who may have had specific facts,
because those individuals are now deceased. This is not enough
to show that he was actually prejudiced.
Watson has not shown that the unavailability of certain
witnesses was caused by the State’s not bringing the charges
sooner. He read into the record police testimony from 11 wit-
nesses interviewed shortly after the murder. Those witnesses
told police Bonnet often had male visitors at his apartment,
and they identified the two possible suspects discussed above.
Both men were interviewed by police about their relationships
with Bonnet, but no charges were brought against them. At the

506 	285 NEBRASKA REPORTS
time of Watson’s trial, the 11 witnesses who talked to police in
1978 were either deceased or otherwise unavailable. However,
they did not become unavailable due to the prosecution’s delay
in bringing charges after it gathered enough evidence to charge
Watson with murder.
Watson’s argument rests on the fact that over 30 years have
passed since the time that the crimes were committed. As
expected, because of the passage of time, many of the wit-
nesses were deceased or unavailable. But the length of time
before Watson was charged with murder was largely caused
by the fact that the technology used to link Watson with the
murder was not available in 1978 when the crimes were com-
mitted. The lack of the availability of Watson’s purported
witnesses was not caused by the failure of the State to timely
bring the charge against Watson. Watson was permitted to read
into evidence police reports from witnesses given to police
shortly after the crimes. Watson cannot blame the State because
of the passage of time.
Equally important, Watson cannot satisfy the second prong
of the test, because he cannot show that the State intention-
ally caused the delay to gain a tactical advantage. The record
shows that the State prosecuted Watson shortly after it gath-
ered DNA and fingerprint evidence. Police had no evidence
against Watson until DNA evidence linked him to the murder.
His DNA was found on a hair in the fecal material on one
of the towels next to Bonnet’s naked body. The DNA evi-
dence was tested in 2009 and determined to match Watson’s
DNA profile. He was charged in 2010. The time between the
investigation into the DNA evidence and bringing Watson to
trial was not intentionally caused by the State to gain a tacti-
cal advantage.
The defendant cites People v. Morris, 46 Cal. 3d 1, 756 P.2d
843, 249 Cal. Rptr. 119 (1988), disapproved on other grounds,
In re Sassounian, 9 Cal. 4th 535, 887 P.2d 527, 37 Cal. Rptr.
2d 446 (1995), in support of his claim that a preindictment
delay may violate a defendant’s right to a fair trial and due
process. In Morris, police had ample evidence linking the
defendant to the murder in 1979 but did not file charges until

STATE v. WATSON 	507
Cite as 285 Neb. 497
May 1982. The court weighed the prejudice the delay caused
the defendant against the justification for the delay. The court
concluded that there was no prejudice to the defendant. Morris
does not support Watson’s claim.
Watson cannot show the delay was caused intentionally by
the prosecuting authority’s failure to file charges. The State
brought charges against Watson as soon as it had sufficient
evidence. The use of DNA evidence was not available in 1978,
and Watson has not shown that the State purposefully waited to
bring charges in order to prevent him from calling witnesses.
Because Watson cannot show the State intentionally waited to
bring charges to gain an unfair tactical advantage, he cannot
show his due process rights were violated. This assignment of
error is without merit.
sufficiency of evidence
Watson claims the evidence was insufficient to sustain his
convictions. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination
thereof, the standard is the same: An appellate court does not
resolve conflicts in the evidence, pass on the credibility of wit-
nesses, or reweigh the evidence; such matters are for the finder
of fact. State v. Howell, 284 Neb. 559, 822 N.W.2d 391 (2012).
The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.
A rational jury could find beyond a reasonable doubt that
Watson murdered Bonnet either with premeditation or in the
commission of a robbery. Police were unable to find Bonnet’s
wallet or any cash in his apartment. His body was lying on
his apartment floor, naked and face down. Bonnet died from a
stab wound to his abdomen, and he had been dead for at least
48 hours before the time of the autopsy performed on October
18, 1978.
Watson lived in Cicero in his youth, but stayed with a rela-
tive in Omaha for a brief time in the fall of 1978. Police recov-
ered Bonnet’s car in Cicero on October 19, 1978. The car had

508 	285 NEBRASKA REPORTS
a stolen license plate obtained from a local vehicle. The plate
had been reported stolen on October 16.
The State’s evidence showed that Watson’s DNA was found
on a beer can in Bonnet’s kitchen wastebasket, on cigarette
butts in the ashtray of Bonnet’s car, and on two cigarette butts
in Bonnet’s living room wastebasket. Watson’s palmprint and
a fingerprint were found on Bonnet’s medicine cabinet and
bathroom door. This evidence would permit a rational trier of
fact to find beyond a reasonable doubt that Watson had been in
Bonnet’s car and apartment. However, this evidence does not
establish when Watson was in Bonnet’s car or apartment.
Watson’s DNA was on a hair that was on a towel next to
Bonnet’s body. The hair was in the fecal matter found on the
towel. While the other DNA evidence and fingerprints would
establish that Watson had been in Bonnet’s apartment, the
DNA from the hair on the towel would permit the jury to find
beyond a reasonable doubt that Watson was in the apartment at
the time of the murder.
The only logical explanation for the location of the hair in
the fecal matter is that Watson was present at the time Bonnet
was murdered. Evidence of Watson’s hair placed him next to
the naked body of the victim. The DNA from the hair estab-
lished that only 1 in 37.6 million Caucasians would fit this
DNA profile. The reasonable inference from this evidence
is that Watson was in Bonnet’s apartment at the time of the
murder, because he left his DNA on the towel found next to
Bonnet’s body. This placed him next to Bonnet at the time of
the murder.
An autopsy concluded that Bonnet died from a stab wound
to the left upper quadrant of the abdomen, which resulted
in exsanguinating hemorrhage. The stab wound had to be
inflicted by a sharp object that could penetrate the abdomen.
The telephone cord had been cut, which would have prevented
Bonnet from calling for help. A reasonable jury could also find
beyond a reasonable doubt that Watson used a deadly weapon
to stab Bonnet. Giving the benefit of such reasonable infer-
ences to the State, we conclude that a jury could have found
beyond a reasonable doubt that Watson was guilty of first
degree murder.

STATE v. WATSON 	509
Cite as 285 Neb. 497
prosecutoriAl misconduct
Watson 	claims 	that 	the 	prosecutor’s 	misconduct 	during
Watson’s cross-examination of Herout should have resulted
in a mistrial. During cross-examination, Watson attempted to
show problems with the integrity of the evidence based on the
passage of time. An evidence bag contained a bloodstained
sofa cushion from Bonnet’s living room, several sheets from
an Omaha area hospital, a green pillowcase and blanket, and a
Def Leppard T-shirt from a 1983 concert tour. Herout admitted
that other than the sofa cushion, the items were not consistent
with his review of the photographs from the crime scene and
the property inventory reports. And the 1983 concert clearly
occurred after the 1978 murder.
On cross-examination, Herout admitted that the only expla-
nation he had for the problem of intermingled evidence came
from talking to the property room manager for the Omaha
Police Department. The following colloquy occurred:
[Defense counsel:] [D]o you know personally how it
[Def Leppard T-shirt] got in there?
[Herout:] Yes.
[Defense counsel:] How? From whom?
[Herout:] Based on the conversation with [the property
room manager].
[Defense counsel:] So [the property room manager] is
the one that knows?
[Herout:] Yes.
[Defense counsel:] Not you. All you know is what [the
property room manager] told you?
[Herout:] Correct.
[Prosecutor]: Well, I’m going to object, he says he
does know.
[Defense counsel]: All you know is that [the property
room manager] —
[Prosecutor]: He just asked do you know.
[Court]: Overruled. That’s what he said that’s how he
knows it from [the property room manager].
[Prosecutor]: And he knows now.
[Second prosecutor]: The question was yes or no.
[Prosecutor]: That’s the question.

510 	285 NEBRASKA REPORTS
[Defense counsel]: And he said yes. And I said —
[Prosecutor]: He just doesn’t want to hear the answer.
[Court]: Just a minute, counsel.
[Defense counsel]: Wait a minute. I want to approach
the bench, please.
A bench conference was then held out of the hearing
of the jury. Defense counsel moved for a mistrial on the
ground of prosecutorial misconduct because the prosecutor
had stated that defense counsel did not want to know the
answer to his question. The court strongly admonished the
prosecutor about the improper comment, but overruled the
motion for mistrial.
The court resumed trial but stated in the presence of the
jury: “All right. The objection by [defense counsel] as to hear-
say is sustained. I am asking both counsel just to make your
objection as to the objection. No further comments are required
nor necessary nor will be allowed by the Court.”
[11] When a prosecutor’s conduct was improper, this court
considers the following factors in determining whether the
conduct prejudiced the defendant’s right to a fair trial: (1) the
degree to which the prosecutor’s conduct or remarks tended to
mislead or unduly influence the jury, (2) whether the conduct
or remarks were extensive or isolated, (3) whether defense
counsel invited the remarks, (4) whether the court provided a
curative instruction, and (5) the strength of the evidence sup-
porting the conviction. State v. Alarcon-Chavez, 284 Neb. 322,
821 N.W.2d 359 (2012). Whether prosecutorial misconduct
is prejudicial depends largely on the context of the trial as a
whole. Id.
[12] Whether to grant a mistrial is within the trial court’s
discretion, and we will not disturb its ruling unless the court
abused its discretion. State v. Dixon, 282 Neb. 274, 802 N.W.2d
866 (2011). Before it is necessary to grant a mistrial for prose-
cutorial misconduct, the defendant must show that a substantial
miscarriage of justice has actually occurred. Id.
Watson’s trial encompassed 7 trial days from opening
statements through closing arguments. Twenty-three witnesses
testified or had their statements read into the record as tes-
timony. The prosecutor’s comment that defense counsel did

STATE v. WATSON 	511
Cite as 285 Neb. 497
not “want to hear the answer” occurred in the middle of the
trial. The court, once the sidebar ended, stated in the pres-
ence of the jury that counsel should not elaborate beyond
making an objection and that the court would not tolerate
further elaboration.
The prosecutor’s comment, although inappropriate, did not
require a mistrial. Watson has not shown that a substantial
miscarriage of justice actually occurred or that there was a
fundamental failure that prevented him from having a fair
trial. The comment made by the prosecutor did not rise to the
level of depriving Watson of a fair trial. The answer to the
question regarding how the T-shirt printed in 1983 got into
the Watson evidence bag in the property room is irrelevant to
the convictions. Watson’s DNA on the hair found on the towel
next to Bonnet is the relevant evidence supporting Watson’s
convictions. The district court did not abuse its discretion
when it denied the motion for mistrial based on the prosecu-
tor’s comment.
CONCLUSION
The district court did not abuse its discretion when it over-
ruled Watson’s motion to dismiss because the charges were
brought 33 years after the commission of the crimes. There was
sufficient evidence for a jury to find beyond a reasonable doubt
that Watson was guilty of the crimes of first degree murder
and use of a deadly weapon to commit a felony. The district
court did not abuse its discretion in overruling Watson’s motion
for mistrial based on prosecutorial misconduct. We affirm the
judgment and sentences of the district court.
A ffirmed.