State v. Ramos

[[COURTLISTENER_SUBOPINION {"id":"11107654","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/25/2025 09:08 AM CDT

- 511 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
State of Nebraska, appellee, v.
Eric L. Ramos, appellant.
___ N.W.3d ___

Filed July 25, 2025. No. S-24-087.

1. Constitutional Law: Speedy Trial: Appeal and Error. The standard
of review appellate courts apply for constitutional speedy trial claims
mirrors the standard of review appellate courts apply in statutory speedy
trial cases: factual determinations relevant to the claim are reviewed for
clear error while legal determinations are reviewed de novo.
2. Constitutional Law: Speedy Trial. The same standards apply to a
speedy trial analysis under both U.S. Const. amend. VI and Neb. Const.
art. I, § 11.
3. Juries: Discrimination: Prosecuting Attorneys: 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. It reviews for clear error a trial court’s factual determination
regarding whether a prosecutor’s race-neutral explanation is persuasive
and whether the prosecutor’s use of a peremptory challenge was pur-
posefully discriminatory.
4. Motions for Mistrial: Appeal and Error. An appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial
unless the trial court has abused its discretion.
5. Criminal Law: Motions for Continuance: Appeal and Error. A deci-
sion whether to grant a continuance in a criminal case is within the
discretion of the trial court and will not be disturbed on appeal absent
an abuse of discretion.
6. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
7. Trial: Evidence: Prosecuting Attorneys: Due Process. The nondisclo-
sure by the prosecution of material evidence favorable to the defendant,
- 512 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
requested by the defendant, violates due process, irrespective of the
good faith or bad faith of the prosecution. But due process is not vio-
lated where the evidence is disclosed during trial.
8. Motions for Continuance: Appeal and Error. A court does not abuse
its discretion in denying a continuance unless it clearly appears that the
party seeking the continuance suffered prejudice because of that denial.
9. Motions for Mistrial: Proof: Appeal and Error. To prove error predi-
cated on the failure to grant a mistrial, the defendant must prove that the
alleged error actually prejudiced him or her, rather than creating only the
possibility of prejudice.
10. Motions for New Trial: Appeal and Error. The standard of review for
a trial court’s denial of a motion for new trial after an evidentiary hear-
ing is whether the trial court abused its discretion in denying the motion.
11. Appeal and Error. Where an appellant’s brief contains conclusory
assertions unsupported by a coherent analytical argument, the appellant
fails to satisfy the requirement that the party asserting the alleged error
must both specifically assign and specifically argue it in the party’s ini-
tial brief.
12. 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 determining admissibility.
13. 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.
14. Trial: Evidence: Appeal and Error. An appellate court reviews the trial
court’s conclusions with regard to evidentiary foundation and witness
qualification for an abuse of discretion.
15. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
16. Trial: Time. Ordinarily, an objection must be made as soon as the
applicability of it is known, or could reasonably have been known, to
the opponent.
17. Rules of Evidence: Hearsay: Appeal and Error. Because of the factors
a trial court must weigh in deciding whether to admit evidence under the
residual hearsay exception, an appellate court applies an abuse of discre-
tion standard to review hearsay rulings under this exception.
18. Criminal Law: Rules of Evidence. The accused does not have an
unfettered right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence.
- 513 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
19. Rules of Evidence: Hearsay. In determining whether a statement is
admissible under the residual hearsay exception to the hearsay rule, a
court considers five factors: a statement’s trustworthiness, the materi-
ality of the statement, the probative importance of the statement, the
interests of justice, and whether notice was given to an opponent.
20. ____: ____. In determining admissibility under the residual hearsay
exception, a court must examine the circumstances surrounding the
declaration in issue and may consider a variety of factors affecting the
trustworthiness of a statement. A court may compare the declaration
to the closest hearsay exception, as well as consider a variety of other
factors affecting trustworthiness, such as the nature of the statement,
that is, whether the statement is oral or written; whether a declarant
had a motive to speak truthfully or untruthfully, which may involve an
examination of the declarant’s partiality and the relationship between the
declarant and the witness; whether the statement was made under oath;
whether the statement was spontaneous or in response to a leading ques-
tion or questions; whether a declarant was subject to cross-examination
when the statement was made; and whether a declarant has subsequently
reaffirmed or recanted the statement.

Appeal from the District Court for Johnson County: Ricky
A. Schreiner, Judge. Affirmed.
Timothy S. Noerrlinger, of Nebraska Commission on Public
Advocacy, for appellant.
Michael T. Hilgers, Attorney General, and Stacy M. Foust
for appellee.
Funke, C.J., Cassel, Stacy, and Papik, JJ., and Daugherty
and Meismer, District Judges.
Papik, J.
During a prison riot, a group of inmates attacked and killed
another inmate. After an investigation, the State identified Eric
L. Ramos as the primary participant in the attack and charged
him with first degree murder, use of a weapon to commit a
felony, and tampering with evidence. A jury convicted Ramos
of those charges. He now appeals, asserting that the district
court made several procedural and evidentiary errors. We find
no merit to these alleged errors and affirm.
- 514 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
I. BACKGROUND
In March 2017, a riot broke out at the Tecumseh State
Correctional Institution (TSCI). During the fracas, Michael
Galindo was attacked and killed by other inmates. After a
review of video surveillance footage, investigators identified
Ramos as the primary participant in the attack. The State
charged Ramos with first degree murder, use of a weapon to
commit a felony, and tampering with evidence. After a mistrial
and two interlocutory appeals, see State v. Ramos,
31 Neb.
App. 434
,
981 N.W.2d 612
(2022) and State v. Ramos,
29 Neb.
App. 511
,
956 N.W.2d 45
(2021), the matter was tried before
a jury.
According to evidence at trial, Ramos and Galindo were
both assigned to cells in TSCI’s housing unit 2. On March
2, 2017, correctional officers searched the cells in the 2A
and 2B galleries of housing unit 2 while the inmates were at
lunch. During the search, officers found and seized homemade
alcohol. Upon returning from lunch and discovering that the
alcohol was taken, the inmates started destroying property
and setting fires. They propped open the doors to a miniyard
shared by the 2A and 2B galleries, allowing them access to
both galleries. The inmates covered their faces with towels and
clothing. TSCI staff members evacuated for their own safety.
During the riot, 10 to 15 inmates attacked Galindo in the
miniyard. Galindo retreated to the 2A gallery, where four
inmates followed and repeatedly stabbed him. After the second
attack was over, one of the four inmates returned alone and
continued to stab Galindo. After the third attack, Galindo got
up, ran to a cell, and locked himself inside. At some point,
the window of the cell door was broken, most likely with
part of an ice machine, and inmates spread fire into that cell.
Correctional officers later found Galindo in the cell, deceased.
An autopsy report concluded his cause of death was smoke
inhalation exacerbated by sharp force and blunt force injuries.
Viewing video surveillance footage from multiple cameras,
TSCI Cpl. Tatiana De Los Santos identified Ramos and his
- 515 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
cellmate as participants in the attack on Galindo. De Los
Santos and Nebraska State Patrol Investigator Neal Trantham
later used the footage to track Ramos’ movements, and they
testified that Ramos was the primary participant.
The jury found Ramos guilty of all charges. The district
court subsequently determined that Ramos was a habitual
criminal and sentenced him to life imprisonment for murder
and to additional terms of imprisonment for the remaining
convictions.
Ramos filed a timely appeal. We summarize additional rel-
evant facts in the analysis section below.
II. ASSIGNMENTS OF ERROR
Ramos assigns that the district court committed a number of
procedural and evidentiary errors. We state and analyze each
of these errors in the relevant sections of the analysis below.
III. ANALYSIS
1. Constitutional Speedy Trial and
Constitutional Right to Due Process
(a) Background
The State charged Ramos by information on October 19,
2017. A jury was empaneled and trial began in August 2018.
After approximately a week of trial, Ramos successfully moved
for a mistrial on the grounds that one of the State’s witnesses
had violated the district court’s sequestration order.
Nearly 3 months after the mistrial, Ramos filed a plea in
bar, alleging that the constitutional Double Jeopardy Clause
prohibited his retrial. The district court denied the plea in bar.
Ramos appealed to the Nebraska Court of Appeals, and the
Court of Appeals affirmed, finding that the plea in bar was
properly denied. See State v. Ramos,
29 Neb. App. 511
,
956
N.W.2d 45
(2021). The Court of Appeals explained that when
a mistrial is granted upon a defendant’s motion, the Double
Jeopardy Clause generally does not bar retrial. The Court of
Appeals acknowledged that the Double Jeopardy Clause does
- 516 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
bar retrial in cases in which the State engages in prosecuto-
rial misconduct designed to provoke the defendant into mov-
ing for a mistrial, but found that the State did not do so in
Ramos’ case.
The district court spread the Court of Appeals’ mandate on
March 31, 2021, and the retrial was scheduled to begin that
August. Trial did not begin in August, however, because on
July 21, Ramos filed another motion that postponed trial, this
time a motion for discharge, alleging that his statutory and con-
stitutional speedy trial rights had been violated.
The district court overruled the motion for discharge. It
concluded that neither Ramos’ statutory nor constitutional
speedy trial rights had been violated. This prompted Ramos
to, once again, return the case to the appellate courts. And,
once again, Ramos’ appeal was unsuccessful. See State v.
Ramos,
31 Neb. App. 434
,
981 N.W.2d 612
(2022). The Court
of Appeals determined that Ramos’ statutory right to a speedy
trial had not been violated and, pursuant to our decision in
State v. Abernathy, 310 Neb 880,
969 N.W.2d 871
(2022), that
it lacked jurisdiction to review the district court’s conclusion
that Ramos’ constitutional speedy trial rights had not been vio-
lated. The district court spread the Court of Appeals’ mandate
on December 30, 2022.
On October 24, 2023, Ramos filed another motion to dis-
charge. Ramos contended that he should be granted discharge
because the fact that he had not yet been tried violated his
constitutional right to a speedy trial, as well as his constitu-
tional right to due process. The district court overruled Ramos’
motion, noting in its order that Ramos’ plea in bar, first motion
to discharge, and related appeals had caused a delay of over
1,300 days.
(b) Assignments of Error
Ramos assigns that the district court erred (1) by failing to
grant his motion for discharge based on his constitutional right
to a speedy trial and (2) by failing to grant his motion for dis-
charge based on his constitutional right to due process.
- 517 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
(c) Standard of Review
A criminal defendant’s claim that he or she was denied
due process as a result of delay presents a mixed question of
law and fact. See State v. Oldson,
293 Neb. 718
,
884 N.W.2d
10
(2016). When reviewing a trial court’s determination of a
claim of denial of due process resulting from delay, an appel-
late court will review determinations of historical fact for clear
error, but it will review de novo the trial court’s ultimate deter-
mination as to whether any delay by the prosecutor caused
substantial prejudice to the defendant’s right to a fair trial.
See
id.
[1] In constitutional speedy trial cases, we have often said
that in general, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a
factual question which will be affirmed on appeal unless
clearly erroneous. See, e.g., State v. Brown,
310 Neb. 224
,
964
N.W.2d 682
(2021); State v. Short,
310 Neb. 81
,
964 N.W.2d
272
(2021); State v. Lovvorn,
303 Neb. 844
,
932 N.W.2d 64
(2019). It is generally recognized, however, that constitutional
speedy trial claims can also require resolution of questions of
law. See, e.g., U.S. v. Oliva,
909 F.3d 1292, 1301
(11th Cir.
2018) (“[w]hether the Government violated a defendant’s Sixth
Amendment right to a speedy trial is a mixed question of law
and fact”); U.S. v. Summage,
575 F.3d 864, 875
(8th Cir. 2009)
(“‘[w]e review the district court’s findings of fact on whether
a defendant’s right to a speedy trial was violated [under the
Sixth Amendment] for clear error but review its legal conclu-
sions de novo’”); Jones v. Morris,
590 F.2d 684, 686
(1979)
(explaining that while assessment of Sixth Amendment speedy
trial claim involves analysis of underlying facts, balancing of
relevant factors is “itself a question of law”). An appellate
court reviews questions of law independently of the lower
court’s conclusion. State v. Geller,
318 Neb. 441
, 16 N.W.3d
365 (2025). Our complete standard of review for constitutional
speedy trial claims thus mirrors the standard of review we
apply in statutory speedy trial cases: factual determinations
- 518 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
relevant to the claim are reviewed for clear error while legal
determinations are reviewed de novo. See State v. Nelson,
313
Neb. 464
,
984 N.W.2d 620
(2023).
(d) Analysis
Ramos assigns that the district court erred in rejecting his
second motion to discharge, which he based on the theory
that the delay in bringing him to trial violated both his con-
stitutional speedy trial right and his right to due process. For
both claims, Ramos attributes the delay in bringing him to
trial entirely to the mistrial that resulted when the State’s wit-
ness contravened the sequestration order. We conclude that the
district court did not err in overruling his second motion to
discharge.
Little must be said to resolve Ramos’ due process argu-
ment because that particular constitutional provision does not
provide protection for the type of delay of which Ramos
complains. We have recognized that the Fifth Amendment,
generally, and therefore the Due Process Clause contained
therein, has “only a limited role to play in protecting against
oppressive delay in the criminal context.” See State v. Hettle,
288 Neb. 288
, 304,
848 N.W.2d 582
, 596 (2014) (internal quo-
tation marks omitted). This court has declined to find a due
process violation where there has been a delay in bringing the
accused to trial after arrest or indictment, as opposed to pre
arrest or indictment delay. See
id.
See, also, State v. Short,
310
Neb. 81
,
964 N.W.2d 272
(2021); State v. Oldson,
293 Neb.
718
,
884 N.W.2d 10
(2016). Here, the delay occasioned by
the mistrial occurred well after charges were brought against
Ramos; thus, this interval falls outside the timeframe for due
process claims involving delay in criminal prosecution.
Although the Due Process Clause does not provide protec-
tion for delay that occurs after the accused has been charged,
there are constitutional speedy trial protections for that period.
See U.S. Const. amend. VI and Neb. Const. art. I, § 11. See,
also, State v. Meese,
257 Neb. 486
,
599 N.W.2d 192
(1999),
citing United States v. Marion,
404 U.S. 307
,
92 S. Ct. 455
,
- 519 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
30 L. Ed. 2d 468
(1971). Because the mistrial occurred after
Ramos had been charged, constitutional speedy trial protec-
tions applied. But we find no merit to Ramos’ contention that
those protections entitle him to relief in this case.
[2] The same standards apply to a speedy trial analysis
under both U.S. Const. amend. VI and Neb. Const. art. I, § 11.
State v. Loyd,
269 Neb. 762
,
696 N.W.2d 860
(2005). The U.S.
Supreme Court has developed a balancing test to determine
whether a defendant’s constitutional right to a speedy trial has
been violated. See Barker v. Wingo,
407 U.S. 514
,
92 S. Ct.
2182
,
33 L. Ed. 2d 101
(1972). This balancing test involves
four factors: (1) the length of the delay, (2) the reason for
the delay, (3) the defendant’s assertion of the right, and (4)
prejudice to the defendant. See State v. Lovvorn,
303 Neb. 844
,
932 N.W.2d 64
(2019). None of these four factors, standing
alone, is a necessary or sufficient condition to the finding of a
deprivation of the right to a speedy trial; rather, the factors are
related and must be considered together with such other cir-
cumstances as may be relevant. State v. Tucker,
259 Neb. 225
,
609 N.W.2d 306
(2000).
In Ramos’ view, the Barker factors tilt decisively in his
favor. He asserts that the reason nearly 6 years passed between
the time he was first charged and his second motion for dis-
charge was the violation of the district court’s sequestration
order by a witness for the State. He also claims that he has
been prejudiced by this delay. On this score, he claims that he
lost contact with several key witnesses that “appear to have
exculpatory testimony” that would have been available to tes-
tify on his behalf but for the delay following the mistrial. Brief
for appellant at 81.
We do not view the Barker factors to favor discharge in
the way Ramos does. We do not dispute that significant time
passed between the filing of the initial charges and Ramos’
second motion for discharge. Neither do we dispute that at
least some delay was caused by the State’s witness’ violation
of the district court’s sequestration order. As we will explain,
- 520 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
however, the delay attributable to the State is far less than that
attributable to Ramos.
Although the mistrial occurred as a result of the State’s wit-
ness’ violation of the district court’s sequestration order, much
of the delay that followed the mistrial was brought about by
Ramos. Ramos waited nearly 3 months after the mistrial before
filing his plea in bar. Then, after his plea in bar was denied,
he appealed that ruling. When the case returned to the district
court and was scheduled for trial, Ramos again prevented trial
from taking place by filing a motion for discharge. He then
took another appeal after that motion for discharge was denied.
As the district court observed, all told, Ramos’ plea in bar,
first motion to discharge, and related appeals caused a delay
of over 1,300 days.
None of the foregoing should be taken as criticism of
Ramos’ choice to pursue a plea in bar, his first motion for
discharge, or related appeals. He was entitled to seek those
avenues of relief. As the U.S. Supreme Court has explained,
however, defendants should generally not, after filing pretrial
motions and interlocutory appeals, be able to use the attendant
delay as a basis for claiming they were denied their right to a
speedy trial. See United States v. Loud Hawk,
474 U.S. 302,
316
,
106 S. Ct. 648
,
88 L. Ed. 2d 640
(1986) (“[a] defendant
who resorts to an interlocutory appeal normally should not be
able upon return to the district court to reap the reward of dis-
missal for failure to receive a speedy trial”). See, also, State v.
Short,
310 Neb. 81
,
964 N.W.2d 272
(2021).
In addition, to the extent some delay caused by the mistrial
was not attributable to Ramos, there is no basis to say that
such delay was the result of a “deliberate attempt to delay
the trial in order to hamper the defense,” the type of delay
that is to be heavily weighted against the State under Barker
v. Wingo,
407 U.S. 514, 531
,
92 S. Ct. 2182
,
33 L. Ed. 2d
101
(1972). As the Court of Appeals concluded in its opinion
affirming the district court’s denial of Ramos’ plea in bar,
there was a lack of evidence that the mistrial arose because
- 521 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
of intentional prosecutorial misconduct or that prosecutors
intended to provoke a mistrial. See State v. Ramos,
29 Neb.
App. 511
,
956 N.W.2d 45
(2021).
Finally, we note that while Ramos suggests that he lost
contact with witnesses who would have provided exculpatory
testimony after the mistrial, he does not specify who those wit-
nesses are or what testimony they would have provided.
To recap, most of the delay in this case was attributable to
Ramos’ pretrial motions and interlocutory appeals. The delay
caused by the mistrial itself—the only delay Ramos complains
of—was relatively short and not the result of a deliberate
attempt by the State to delay trial for a tactical advantage.
And while Ramos claims that he was prejudiced, he provides
little detail as to how. With these considerations in mind, we
cannot say that Ramos’ constitutional right to a speedy trial
was violated.
2. Batson Challenge
(a) Background
During jury selection, the State used one of its peremp-
tory challenges to strike a prospective juror. During voir dire,
that prospective juror explained that serving on the jury for 3
weeks would be a hardship for her. She was a bedside nurse,
working 46 hours per week at different hospitals; and she was
the only radiology technician at one clinic where she worked
part time. She stated it would be “really, really hard to staff
adequately” because she was “not quite sure” there were
people capable of filling in for her. The prospective juror also
was a full-time graduate student with a thesis presentation
due later the same month that she “definitely probably cannot
miss.” In addition, her husband had broken his foot, and she
was working four shifts per week to pay the bills, rather than
the required three shifts. The prospective juror stated that she
could try to pay attention and to give the State and Ramos a
fair trial, adding that she had a diagnosis of hyperactivity for
which she took medication.
- 522 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
Ramos challenged the State’s strike of the potential juror
under Batson v. Kentucky,
476 U.S. 79
,
106 S. Ct. 1712
,
90 L.
Ed. 69
(1986), on racial grounds. Ramos argued that the State
struck the potential juror because she was Latino like Ramos.
The State responded that the potential juror was stricken for
a race-neutral reason: out of concern that she could not focus to
the degree necessary during trial because she had a lot “on her
plate” with her work situation, her thesis presentation, and her
role as “sole breadwinner.” The district court overruled Ramos’
Batson challenge.
(b) Assignment of Error
Ramos assigns that the district court erred in overruling his
Batson challenge.
(c) Standard of Review
[3] 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. It reviews for clear error a trial
court’s factual determination regarding whether a prosecu-
tor’s race-neutral explanation is persuasive and whether the
prosecutor’s use of a peremptory challenge was purposefully
discriminatory. State v. Clifton,
296 Neb. 135
,
892 N.W.2d
112
(2017).
(d) Analysis
Ramos contends that the district court committed revers-
ible error in overruling his Batson challenge. According to
Ramos, the State’s peremptory strike of the prospective juror
was inherently discriminatory because it was solely based on
the prospective juror’s race, in violation of
Batson, supra.
We
disagree.
Determining whether a prosecutor impermissibly struck a
prospective juror based on race is a three-step process. State
v. Briggs,
303 Neb. 352
,
929 N.W.2d 65
(2019). In this three-
step process, the ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent
- 523 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
of the strike.
Id.
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 determine
whether the defendant has carried his or her burden of proving
purposeful discrimination.
Id.
Once the trial court has decided the ultimate question of
intentional discrimination, however, the questions on appeal
are only whether the prosecutor’s reasons were facially race
neutral and whether the trial court’s final determination regard-
ing purposeful discrimination was clearly erroneous. See
id.
We are unpersuaded that the trial court erred on either question.
As to whether the State gave facially race-neutral rea-
sons, the State explained to the district court that it struck
the prospective juror due to concern that her work situation,
school obligations, and financial pressures would prevent her
from adequately focusing on Ramos’ trial. These are plainly
race-neutral reasons. “Only inherently discriminatory explana-
tions are facially invalid,” Clifton,
296 Neb. at 149-50
,
892
N.W.2d at 127
, and these reasons are in no way inherently
discriminatory.
Neither has Ramos shown that the district court clearly
erred by finding that the race-neutral explanations were genu-
ine, rather than pretexts for racial discrimination. Ramos
acknowledges that a prospective alternate juror, who was not
struck by the State, may have been Latino, but he asserts that
the race-neutral reason the State offered for the peremptory
strike at issue here must have been pretextual because the
State struck “the only possible Latino, who was not an alter-
nate juror.” Brief for appellant at 79. In determining whether
the State’s proffered race-neutral explanation for a peremptory
strike was pretextual, a court may consider whether “the pros-
ecutor’s criterion has a disproportionate impact on a particular
race.” Clifton,
296 Neb. at 151
,
892 N.W.2d at 127
. But in
this case, the record does not show the racial makeup of the
- 524 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
entire jury pool and thus leaves us without the information
necessary to evaluate whether the State’s criterion disparately
impacted Latino members of the jury pool.
In any event, the district court apparently concluded that
the State’s explanation for its peremptory strike was genuine,
rather than pretextual, and a trial court’s determination that
the prosecutor’s race-neutral explanation was not pretextual
is difficult to overturn on appeal. That is so because such a
determination often involves the trial court’s evaluation of
a prosecutor’s credibility. Accordingly, appellate reversal is
appropriate only in exceptional circumstances. See
id.
We see
no exceptional circumstances here. The prosecution identi-
fied a compelling race-neutral explanation for its peremptory
strike, and there is a dearth of evidence suggesting racial dis-
crimination. We conclude that the district court did not clearly
err in finding that the prosecutor’s race-neutral reason for
striking the juror was genuine rather than pretextual. Ramos’
challenge to the district court’s resolution of his Batson chal-
lenge lacks merit.
3. Motion for Mistrial; Alternative
Motion for Continuance
(a) Background
In January 2018, prior to the first trial, Ramos requested,
among other discovery materials, “[e]vidence of activities
of co-defendants or accomplices” and “[a]ny and all state-
ments made available to the State, including but not limited
to police reports, narrative reports and notes prepared by any
investigating personnel . . . and any ‘Brady Material.’” The
district court ordered the State to provide Ramos with statu-
tory discovery pursuant to
Neb. Rev. Stat. § 29-1912
(Cum.
Supp. 2024). Subsequently, the district court further ordered
the State to “make available to the [d]efendant any and all
evidence requested in the motion that is in the possession of
the State; that . . . is material to [d]efendant’s defense; and/or
that the [S]tate intends to introduce as evidence during the
- 525 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
trial.” The State supplemented discovery several times. See
State v. Ramos,
29 Neb. App. 511
,
956 N.W.2d 45
(2021).
In October 2023, Ramos moved for additional discovery
under § 29-1912. He requested that the district court order the
State to permit him, through his counsel, to inspect and copy
or photograph “[a]ny documents or videos compiled related to
other suspects for the death of . . . Galindo by investigators
of the Nebraska State Patrol or the Nebraska Department of
Corrections staff.” The district court granted Ramos’ motion
“to release any information on other suspects identified in vid-
eos by the State,” which included a spreadsheet that Trantham
had prepared.
Trial commenced in November 2023. On cross-examination,
Ramos questioned Trantham and De Los Santos about the large
number of inmates in the 2AB miniyard who were evaluated
after the riot. Many had soot on their skin or on their cloth-
ing, injuries to their hands, or the appearance of bloodstains
on their clothing, but Trantham and De Los Santos could not
identify them or track their movements on the surveillance
footage. Those inmates included Lucas Peterson and brothers
John Meyers and Robert Meyers. Ramos did not have soot on
his hands or injuries on his hands.
John Meyers testified on behalf of Ramos that he did not
remember observing the assault on Galindo in the miniyard,
that he could not identify anyone in surveillance footage of the
miniyard, and that he did not see Ramos with a weapon or fire.
The day after John Meyers testified, Ramos recalled
Trantham to testify in his case in chief. Trantham testified
that he had provided reports to the State about followup inter-
views of some inmates conducted in the spring or summer of
2023. After Trantham’s testimony, the State provided Ramos
with exhibit 458, a 12-page document that included reports of
interviews with inmates Peterson and Derek Tilden.
According to exhibit 458, Trantham interviewed Peterson
in August 2023. Exhibit 458 noted that another inmate, Philip
Muratella, had previously been interviewed and said that
- 526 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
Peterson had confided to him that he participated in Galindo’s
murder and felt guilty about it. During the interview with
Trantham, Peterson claimed that he had remained in the mini-
yard during the riot and denied participating in any illegal
activities during that time. He stated he was not familiar with
Muratella but that he had spoken to an inmate named “Lucky”
about the events in general. The report noted that “Lucky” was
a possible nickname for Muratella.
Exhibit 458 also included an investigator’s interview with
Tilden in May 2023 about a letter he wrote regarding Galindo’s
murder. Tilden told the investigator that he had become friends
with the Meyers brothers. He claimed that the Meyers brothers
had bragged to him about stabbing Galindo and setting him on
fire because Galindo had disobeyed their order not to use the
phone during the riot. Tilden recalled that the Meyers broth-
ers named other participants in the murder, and one of those
participants was Ramos. Tilden told investigators that “a good
inmate to speak with would be Charles Eagle Boy.” (Emphasis
omitted.) Neither Tilden nor Eagle Boy were housed in hous-
ing unit 2 on the date of the riot, so they were not included in
lists of inmates provided to the defense.
Ramos moved for a mistrial on grounds that the State had
not complied with discovery and Brady requirements. The
prosecutor explained that the late disclosure of exhibit 458
was inadvertent. The district court suggested that Ramos could
have learned about the reports during testimony earlier in the
trial; it overruled Ramos’ motion for mistrial.
The next day, Ramos renewed his motion for mistrial and,
in the alternative, moved to continue the trial for 2 weeks so
that he could investigate the information in exhibit 458. Ramos
introduced evidence showing that he did not know about the
information in exhibit 458 and that his investigator had inter-
viewed the Meyers brothers without the benefit of Tilden’s
statements. Defense counsel argued to the district court that
the late disclosure had prejudiced Ramos and that additional
time was needed to investigate the Meyers brothers and Tilden.
- 527 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
The district court overruled the motions. The defense pro-
ceeded with testimony by Ramos and rested the same day.
Other exhibits, exhibits 470 and 471, were disclosed after
trial. Exhibits 470 and 471 include much of the same informa-
tion as exhibit 458, along with an additional interview. Because
exhibits 470 and 471 were disclosed after trial, they are dis-
cussed below in the section addressing Ramos’ posttrial motion
for new trial.

(b) Assignments of Error
Ramos assigns that the district court erred in (1) failing to
grant a mistrial after the State disclosed “newly discovered
evidence” during his case in chief or, alternatively, (2) failing
to grant him a 2-week continuance following that disclosure.

(c) Standard of Review
[4-6] An appellate court will not disturb a trial court’s deci-
sion whether to grant a motion for mistrial unless the trial court
has abused its discretion. State v. Lenhart,
317 Neb. 787
, 11
N.W.3d 661 (2024). Similarly, a decision whether to grant a
continuance in a criminal case is within the discretion of the
trial court and will not be disturbed on appeal absent an abuse
of discretion. State v. Turner,
315 Neb. 661
,
998 N.W.2d 783
(2024). An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.
Id.
(d) Analysis
Ramos claims that he was entitled to a mistrial or, in the
alternative, a continuance, because the disclosure of exhibit
458 on the penultimate day of trial violated discovery orders
pursuant to Brady v. Maryland,
373 U.S. 83
,
83 S. Ct. 1194
,
10
L. Ed. 2d 215
(1963), and § 29-1912. We ascertain no abuse of
discretion by the district court in declining to grant a mistrial
or continuance.
- 528 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
[7] We first address Ramos’ reliance on Brady. Under
Brady, the nondisclosure by the prosecution of material evi-
dence favorable to the defendant, requested by the defendant,
violates due process, irrespective of the good faith or bad faith
of the prosecution. We have held, however, that due process
is not violated where, as was the case with exhibit 458 here,
the evidence is disclosed during trial. See
Turner, supra.
See,
also, State v. Lotter,
255 Neb. 456
,
586 N.W.2d 591
(1998),
modified on denial of rehearing
255 Neb. 889
,
587 N.W.2d
673
(1999).
Ramos acknowledges our precedent that a defendant cannot
establish a Brady violation based on evidence disclosed during
trial, but argues that in this case, the evidence was disclosed
so late in the trial he was unable to effectively use it. We are
aware that some courts have recognized the possibility of a
viable Brady claim based on a midtrial disclosure of evidence.
See, e.g., U.S. v. Burke,
571 F.3d 1048
(10th Cir. 2009); U.S.
v. Walsh,
75 F.3d 1
(1st Cir. 1996). There is no need, however,
for us to consider whether Ramos could establish a viable
Brady claim on the theory that the evidence was disclosed too
late for him to use it. That is because, even if the fact that the
State disclosed exhibit 458 during trial is set to the side, Ramos
would still be unable to establish a successful Brady claim.
For Ramos to succeed on a Brady claim, he must show
that the prosecution suppressed favorable material evidence.
Evidence is material under Brady, however, “only if there is
a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.” United States v. Bagley,
473 U.S. 667, 682
,
105
S. Ct. 3375
,
87 L. Ed. 2d 481
(1985). Ramos need not show
that acquittal was more likely than not had the evidence been
disclosed. See Kyles v. Whitley,
514 U.S. 419
,
115 S. Ct. 1555
,
131 L. Ed. 2d 490
(1995). Instead, “[a] ‘reasonable probabil-
ity’ of a different result is . . . shown when the government’s
evidentiary suppression ‘undermines confidence in the out-
come of the trial.’”
Id.,
514 U.S. at 434
. Ramos must show
- 529 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
that “the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confi-
dence in the verdict.” See
id.,
514 U.S. at 435
.
But even assuming exhibit 458 had been disclosed long
before it was, we discern no reasonable probability that Ramos’
trial would have turned out differently. Exhibit 458 contained
witness accounts that inmates other than Ramos were involved
in attacking Galindo. The State, however, had already pre-
sented evidence that Ramos was one of a host of inmates
involved in the attack on Galindo. After 10 to 15 inmates
first attacked Galindo in the miniyard, four inmates followed
Galindo to the 2A gallery and repeatedly stabbed him there.
Following that attack, one of those four inmates returned
to stab Galindo again. Galindo then fled to a cell; the cell’s
window was broken, most likely by part of an ice machine
obtained by an inmate, allowing 11 inmates to spread fire into
the cell. Given the number of inmates that participated in the
attacks, additional evidence that some specific inmates were
involved would not have aided Ramos in showing that he was
not involved. Moreover, exhibit 458 referenced Tilden’s asser-
tion that the Meyers brothers had identified Ramos as one of
Galindo’s assailants. Rather than helping Ramos’ case, this
information in exhibit 458 would have harmed it. Under these
facts, we remain confident in the outcome of the verdict not-
withstanding any suppression of exhibit 458 and thus conclude
that exhibit 458 was not material under Brady v. Maryland,
373 U.S. 83
,
83 S. Ct. 1194
,
10 L. Ed. 2d 215
(1963).
Because exhibit 458 does not meet the materiality standard
for Brady, the district court did not err in finding there was
no Brady violation. And because there was no Brady viola-
tion, the district court did not err by denying Ramos’ motion
for a mistrial to the extent it was premised on Brady.
This leaves Ramos’ argument that he was entitled to a mis-
trial or, alternatively, a continuance, as a result of the State’s
violation of the district court’s discovery orders entered pur-
suant to Nebraska’s criminal discovery statute, § 29-1912.
- 530 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
Section 29-1912 sets out specific categories of information
that a defendant may request the court to order the State to
disclose. See § 29-1912(1). The State does not dispute that
here, Ramos sought information pursuant to § 29-1912(1)(g):
“Reports developed or received by law enforcement agencies
when such reports directly relate to the investigation of the
underlying charge or charges in the case.” Nor does the State
dispute that exhibit 458 qualifies as such a report.
Section 29-1912(2) governs the trial court’s decision whether
to order the State to disclose the requested information, provid-
ing that the trial court “shall consider,” “[i]n the exercise of its
judicial discretion,” one or more of specific factors set forth
in subsection (2), “among other things.” One of the specific
factors that the trial court “shall consider” “[i]n the exercise
of its judicial discretion” is whether “[t]he request is material
to the preparation of the defense.” See § 29-1912(2)(a). There
is no dispute that upon consideration, the district court ordered
disclosure of the information Ramos requested, which would
have included exhibit 458. However, the State did not disclose
exhibit 458 until the penultimate day of trial. The State does
not dispute that this was a violation of the district court’s dis-
covery order.
Another statute,
Neb. Rev. Stat. § 29-1919
(Cum. Supp.
2024), provides that, in response to a violation of a discovery
order pursuant to § 29-1912, the trial court “may” order pro-
duction of undisclosed materials, grant a continuance, exclude
the undisclosed material from evidence, or “[e]nter such other
order as it deems just under the circumstances.” This gives
the trial court broad discretion that, depending on the circum-
stances, may include the entry of no order at all. See State v.
Vicars,
207 Neb. 325
,
299 N.W.2d 421
(1980). In relation to
exhibit 458, the district court responded to the State’s violation
of its discovery order by overruling Ramos’ requests for a mis-
trial and, alternatively, a 2-week continuance. Ramos asserts
this was error.
- 531 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
Ramos argues that our decisions in State v. Kula,
252 Neb.
471
,
562 N.W.2d 717
(1997), and State v. Null,
247 Neb. 192
,
526 N.W.2d 220
(1995), support his argument that the denial
of his motion for a continuance was an abuse of discretion. In
Kula, we held that a trial court abused its discretion by fail-
ing to grant the defendant’s motion for a continuance after the
State disclosed, on the first day of trial, information regarding
its investigation of other suspects, which it had been ordered
to produce pursuant to § 25-1912. In the course of explaining
why the denial of a continuance amounted to an abuse of dis-
cretion in that case, we made the following statement:
Under § 25-1912, whether a prosecutor’s failure to dis-
close evidence results in prejudice depends on whether
the information sought is material to the preparation of
the defense, meaning that there is a strong indication that
such information will play an important role in uncover-
ing admissible evidence, aiding preparation of witnesses,
corroborating testimony, or assisting impeachment or
rebuttal.
Kula,
252 Neb. at 486
,
562 N.W.2d at 727
.
In support of this proposition, our opinion in Kula cited
our opinion in
Null, supra.
In Null, we stated that “[u]nder
§ 29-1912, the test for whether nondisclosure is prejudicial
is whether the information sought is material to the presenta-
tion of the defense.”
247 Neb. at 207
,
526 N.W.2d at 231
. We
then stated that information is material if it meets the same
“‘strong indication that such information will play an impor-
tant role’” standard articulated in Kula. Null,
247 Neb. at 207
,
526 N.W.2d at 231
. Ramos argues that exhibit 458 meets the
standard of materiality articulated in Kula and Null and that
it follows that he suffered prejudice and the district court
abused its discretion by denying his requests for a mistrial or,
alternatively, a continuance.
Although some language in Kula and Null could be under-
stood to say that a defendant is prejudiced in any instance in
which the State violates a discovery order under § 29-1912 by
- 532 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
failing to timely disclose information that meets the materiality
standard articulated in those opinions, we do not believe that is
a correct statement of the law. To explain why, it is necessary
to recount some history.
The “strong indication” materiality standard discussed in
Kula and Null first entered Nebraska jurisprudence in State v.
Brown,
214 Neb. 665
,
335 N.W.2d 542
(1983). In that case,
we stated that “[i]nformation is material in the preparation of
a defense if there is a strong indication that such information
will play an important role in uncovering admissible evidence,
aiding preparation of witnesses, corroborating testimony, or
assisting impeachment or rebuttal,” citing an opinion from the
U.S. District Court for the District of Columbia. See Brown,
214 Neb. at 674-75
,
335 N.W.2d at 547
, citing United States
v. Felt,
491 F. Supp. 179
(D.D.C. 1979). In the federal courts,
this materiality standard is used to determine whether the gov-
ernment is obligated to disclose information to a defendant
under the Federal Rules of Criminal Procedure governing dis-
covery. See, e.g., U.S. v. Lloyd,
992 F.2d 348
(D.C. Cir. 1993);
U.S. v. Stein,
488 F. Supp. 2d 350
(S.D.N.Y. 2007). In Brown
and cases that followed it, we appear to have adopted that
same standard for determining whether information is “mate-
rial” for purposes of § 29-1912(2)(a). See, e.g., State v. Lotter,
255 Neb. 456, 491
,
586 N.W.2d 591, 619
(1998) (“[t]hus,
under § 29-1912, evidence is material when there is a strong
indication that it will play an important role in, among other
things, assisting impeachment or rebuttal”), modified on denial
of rehearing
255 Neb. 889
,
587 N.W.2d 673
(1999).
In Null, however, we seem to have added to the materiality
standard’s function. In that case, we said for the first time, and
with a citation to Brown unaccompanied by additional author-
ity or explanation, that
[u]nder § 29-1912, the test for whether nondisclosure is
prejudicial is whether the information sought is material
to the presentation of the defense, meaning that there is
a “strong indication that such information will play an
- 533 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
important role in uncovering admissible evidence, aid-
ing preparation of witnesses, corroborating testimony, or
assisting impeachment or rebuttal.”
State v. Null,
247 Neb. 192, 207
,
526 N.W.2d 220, 231
(1995)
(emphasis supplied), quoting Brown, supra. We repeated the
same idea in Kula when we said that “[u]nder § 25-1912,
whether a prosecutor’s failure to disclose evidence results in
prejudice depends on whether the information sought is mate-
rial to the preparation of the defense.” State v. Kula,
252 Neb.
471, 486
,
562 N.W.2d 717, 727
(1997).
To the extent Kula and Null can be read to say that a defend
ant is automatically prejudiced by a failure to disclose material
information, we believe that was erroneous. The materiality
standard first cited in Brown, supra, is relevant to whether
the trial court should order disclosure of the information a
defendant seeks. It does not follow that every failure to dis-
close material information automatically results in prejudice
and the need for a particular sanction. This is demonstrated by
the statutory language of § 29-1919 that, as mentioned above,
gives trial courts considerable discretion in fashioning rem-
edies for discovery violations, rather than dictating anything
in the nature of automatic sanctions.
Furthermore, it is illogical to say that any failure to disclose
material information will result in prejudice to the defendant.
The materiality standard is focused on whether information
might be useful to preparing a defense. A particular piece of
information could, viewed on its own, be useful for prepar-
ing a defense, and yet its nondisclosure might, when viewed
in light of other evidence introduced at trial, not result in
prejudice. A failure to disclose material information might not
result in prejudice if, to note a couple examples, the withheld
information is cumulative of other evidence received at trial
or there was no reasonable possibility that disclosure of that
information could have changed the verdict. See, e.g., U.S.
v. Rosario-Peralta,
199 F.3d 552
(1st Cir. 1999) (concluding
- 534 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
defendants were not prejudiced by prosecution’s failure to dis-
close material information when nondisclosure did not impede
presentation of defense and did not call jury’s verdict into ques-
tion); United States v. Brown,
562 F.2d 1144
(9th Cir. 1977)
(explaining that to warrant reversal for prosecution’s failure
to disclose information requested in discovery, both material-
ity and prejudice must be shown); U.S. v. Martinez,
844 F.
Supp. 975
(S.D.N.Y. 1994) (separately analyzing materiality
and prejudice in determining whether defendant was entitled
to new trial for prosecution’s failure to disclose information
requested in discovery). To the extent Kula and Null say that
any failure to disclose material information under § 29-1912
automatically results in prejudice, they are disapproved.
We conclude that this is a case where the belated disclo-
sure of exhibit 458 caused no prejudice because there was
no reasonable possibility that earlier disclosure would have
changed the outcome at trial. Ramos argues that he should
have been able to investigate Muratella’s claim that Peterson
had told him he participated in Galindo’s murder and Tilden’s
statement that the Meyers brothers had told him they too par-
ticipated in Galindo’s murder. But even if Ramos was able to
get such assertions into evidence, we see no reasonable prob-
ability of a different outcome. As we have explained, there
was no dispute that many inmates participated in some form
in Galindo’s killing. Claims that Peterson or the Meyers broth-
ers were among those participating would not have under-
mined the State’s case as to Ramos’ guilt. This is especially
true regarding Tilden’s claim that the Meyers brothers were
involved, as Tilden also relayed the Meyers brothers’ claim
that Ramos was involved.
[8,9] A court does not abuse its discretion in denying a
continuance unless it clearly appears that the party seeking
the continuance suffered prejudice because of that denial.
State v. Rezac,
318 Neb. 352
, 15 N.W.3d 705 (2025). In a
similar vein, to prove error predicated on the failure to grant a
- 535 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
mistrial, the defendant must prove that the alleged error actu-
ally prejudiced him or her, rather than creating only the pos-
sibility of prejudice. State v. Haynie,
317 Neb. 371
, 9 N.W.3d
915 (2024). For reasons we have explained, Ramos has not
shown that he was prejudiced by the denial of his motion for
continuance or mistrial. Accordingly, these assignments of
error lack merit.

4. Motion for New Trial
(a) Background
A few days after the jury returned its verdict, Ramos filed
a motion for new trial pursuant to
Neb. Rev. Stat. § 29-2101
(Reissue 2016). According to the motion and his counsel’s
clarifying comments at a hearing, Ramos sought a new trial
on grounds of juror misconduct, prosecutorial misconduct
because of alleged Brady violations, and irregularity in the
proceedings.
At the beginning of the hearing, Ramos asked for a con-
tinuance so that he could obtain phone records and recordings
relating to an inmate who claimed to have had phone conversa-
tions with a juror during the trial. The district court overruled
the motion to continue.
Ramos then presented several exhibits, including affidavits
from both of his defense counsel and reports and recordings of
interviews he received from the State after trial.
One defense counsel affidavit addressed exhibit 458, which
was the basis of the motion for mistrial discussed above, as
well as exhibits 470 and 471. Counsel stated that he received
the reports in exhibit 458 from the State on the second to last
day of trial and that he received the reports and recordings
in exhibits 470 and 471 from the State after trial, on January
18, 2024.
In a second affidavit, defense counsel made statements about
the conversations between the inmate and the juror that were
the basis of the juror misconduct claim.
- 536 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
Exhibits 470 and 471 contained much of the same infor-
mation about Tilden and Muratella as exhibit 458, but they
also included a recording and summary of Trantham’s March
2021 interview with Muratella, who was Galindo’s brother-
in-law. According to Muratella’s interview, about 2½ years
earlier, Peterson confessed to him that he participated in
Galindo’s murder. At that time, Peterson also told Muratella
that it was “‘either me or him’” and that two of the leaders
involved in Galindo’s murder went by the names “Monster”
and “Sicko.” Muratella identified “Monster” and “Sicko” as the
Meyers brothers.
The district court overruled Ramos’ motion for new trial,
finding that the allegations of juror misconduct were not sup-
ported by affidavits and that Ramos had otherwise failed to
provide sufficient evidence to warrant a new trial on any statu-
tory ground.

(b) Assignment of Error
Ramos assigns that the district court erred by failing to grant
his motion for new trial.

(c) Standard of Review
[10] The standard of review for a trial court’s denial of a
motion for new trial after an evidentiary hearing is whether
the trial court abused its discretion in denying the motion.
State v. Blocher,
313 Neb. 699
,
986 N.W.2d 275
(2023).

(d) Analysis
On appeal, Ramos maintains that the late disclosure of
exhibits 470 and 471 and juror misconduct justified a new trial.
We are unconvinced.
We begin with exhibits 470 and 471. On appeal, Ramos
refers to § 29-2101(5) and characterizes these exhibits, in the
language of the statute, as “newly discovered evidence mate-
rial for the defendant which he or she could not with reason-
able diligence have discovered and produced at the trial.” He
- 537 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
asserts that the State ought to have disclosed this evidence in
response to Ramos’ discovery requests and that he could not
have otherwise discovered exhibits 470 and 471 with reason-
able diligence and presented them at trial. He submits that if
he had been made aware of the existence of the exhibits prior
to trial, he would have been able to further investigate the
claims of Tilden and Muratella, which would have included
interviewing Eagle Boy, Peterson, and the Meyers brothers
about their prior statements.
Ramos’ motion initially cited newly discovered evidence
as one of the grounds for new trial. However, at the hearing,
his counsel clarified that, regarding exhibits 470 and 471, he
was seeking a new trial based on prosecutorial misconduct in
the form of a Brady violation, and his brief on appeal argues
that the State ought to have disclosed the evidence when
Ramos requested discovery. When a motion for new trial
based on “newly discovered evidence” is, in substance, based
on a claim that the prosecution violated its duty under Brady
v. Maryland,
373 U.S. 83
,
83 S. Ct. 1194
,
10 L. Ed. 2d 215
(1963), to disclose material evidence favorable to the defend
ant, we analyze it under the Brady framework. See State v.
Lykens,
271 Neb. 240
,
710 N.W.2d 844
(2006). We apply the
Brady framework here.
For Ramos to succeed on his Brady claim as to exhibits
470 and 471, he must show that the prosecution suppressed
favorable material evidence. As we recounted above, “[t]he
evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” United States
v. Bagley,
473 U.S. 667, 682
,
105 S. Ct. 3375
,
87 L. Ed. 2d
481
(1985).
Under the preceding standard, we conclude that Ramos has
not shown that the prosecution suppressed favorable mate-
rial evidence in not disclosing exhibits 470 and 471 until
after trial. Much of the content of those exhibits was duplica-
tive of exhibit 458. Thus, when Ramos moved for new trial,
- 538 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
only a portion of the information in exhibits 470 and 471
was undisclosed. That undisclosed information was Peterson’s
claim, relayed through Muratella’s interview, that the Meyers
brothers were two of the leaders in Galindo’s death and that
Peterson was also involved. Even if the Meyers brothers and
Peterson were involved in Galindo’s death, it would not prove
that Ramos was not involved, and indeed, according to other
evidence, the Meyers brothers stated that Ramos was involved.
Accordingly, there is not a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different; that is, the new infor-
mation does not undermine confidence in the verdict. Because
Ramos has not demonstrated a Brady violation as to exhibits
470 and 471, we conclude that the district court did not err in
overruling his motion for new trial.
[11] Regarding juror misconduct, Ramos reiterates the evi-
dence presented at the hearing on his motion for new trial
but offers no analysis. He simply states that the district court
erred in overruling his motion for new trial due to juror mis-
conduct and in “denying his motion to continue to determine
the scope of any alleged juror misconduct.” Brief for appellant
at 73. Generally, only those issues specifically assigned and
specifically argued on appeal will be considered by the appel-
late court. See State v. Goynes,
318 Neb. 413
, 16 N.W.3d 373
(2025). Ramos has not assigned error regarding his motion to
continue, and his cursory statement that the district court erred
in declining to grant a new trial or continuance concerning
juror misconduct does not amount to an argument. Where an
appellant’s brief contains conclusory assertions unsupported
by a coherent analytical argument, the appellant fails to satisfy
the requirement that the party asserting the alleged error must
both specifically assign and specifically argue it in the party’s
initial brief. State v. Blake,
310 Neb. 769
,
969 N.W.2d 399
(2022). We need not consider Ramos’ allegations regarding
juror misconduct further.
- 539 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
5. “Rule 701” Opinion Evidence
Identifying Ramos
(a) Background
At trial, the State presented lay witness opinion evidence
identifying Ramos on video surveillance footage captured by
multiple cameras. The quality of the footage made details dif-
ficult to discern at times, and some cameras recorded events
at a distance.
Trantham was assigned as the case agent for the Nebraska
State Patrol on the investigation. He and De Los Santos
reviewed the video footage together. De Los Santos, who knew
how to use the surveillance system, had already completed an
initial analysis of the footage that led her to identify two pos-
sible suspects. Trantham testified that Ramos and his cellmate
were named at an initial briefing as the two possible suspects.
Trantham explained that he and De Los Santos analyzed the
surveillance footage forward and backward. They observed an
individual with a distinct pattern of dark or wet spots on the
back of his sweatshirt, who Trantham referred to as “inmate
number one” or “suspect number one.” We will hereafter refer
to that inmate as “suspect number one.”
Trantham testified that they tracked suspect number one
based on other characteristics: He was bald, had light brown
skin, had facial hair, and wore one pair of sunglasses, with
another pair hanging from his collar; and at one point, the entire
left side of his sweatshirt became wet. Trantham observed
that in the miniyard, suspect number one uncovered his face,
changed his clothes, and burned the clothes he had been wear-
ing. Trantham also noted that suspect number one tended to
return to the cell assigned to Ramos and interacted with an
individual believed to be Ramos’ cellmate.
Trantham recounted that suspect number one and three other
suspects were involved in attacking Galindo but that suspect
number one had the most involvement: He stabbed Galindo in
the 2A gallery, returned to stab him again, obtained a part that
had been broken from an ice machine, and set fire to the back
- 540 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
of the 2A gallery, where Galindo was found dead. Without
objection, Trantham testified that “we” identified suspect num-
ber one as Ramos.
De Los Santos testified that she had worked in TSCI’s
intelligence unit doing video review from 2015 until 2020.
Previously, she had worked as a correctional officer in other
areas of TSCI, including the visiting room. De Los Santos
testified that through her different job responsibilities, she
familiarized herself with as many of the inmates as possible.
She testified that she could recognize approximately 80 percent
of the inmate population and that she made efforts as part of
her daily duties in video review to identify the rest through
such factors as complexion, associates, cell assignment, how
clothing was worn, facility passes, gait, movements, facial hair,
baldness, tattoos, and other physical characteristics. De Los
Santos explained that her work had required her to identify
hundreds of inmates, but she did not identify anyone unless she
was 100 percent certain.
De Los Santos testified that she first became acquainted
with Ramos sometime in 2014, when her primary responsibil-
ity was to monitor inmates and their visitors. She estimated
she had interacted with Ramos approximately five times dur-
ing visiting hours and more than five times working either in
the yard or in other areas. She testified that she had very close
contact with Ramos on the main yard at least 10 times. De
Los Santos explained that her interaction with Ramos during
visiting hours, which involved constantly monitoring 1-hour
to 3-hour sessions, required her to become familiar with his
appearance and mannerisms. But De Los Santos testified that
she became familiar with Ramos mostly through video sur-
veillance because she observed him that way daily.
De Los Santos testified that during the days following the
riot, she spent hundreds of hours reviewing video footage to
try to identify who had attacked Galindo. She testified that
she could identify two of the four individuals involved in the
attack in the 2A gallery. She was around 80 percent certain of
- 541 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
her initial identifications, so she continued to review the foot-
age to track the movements of those two individuals. De Los
Santos testified that Ramos’ cellmate was one of the individu-
als she could identify. She identified him based on his build,
cell assignment, associates, clothing, complexion, and a face
tattoo that was visible when he removed his mask. The second
individual De Los Santos identified also removed his mask,
which she testified formed her conclusion of who he was. She
observed footage of him removing his mask and changing his
clothes. She could see that he had short-shaven facial hair
and was bald. She said that his build, his frequent interaction
with the other identified individual, and his olive complexion
helped her identify him. Over Ramos’ objection based on
Neb.
Rev. Stat. § 27-701
(Reissue 2016), De Los Santos testified
that she identified Ramos as the second individual.
In the examination that followed, the State elicited De Los
Santos’ testimony identifying Ramos in specific parts of the
video footage shown to the jury. The district court allowed
this testimony over Ramos’ objection, see § 27-701, finding
that it was rationally based on De Los Santos’ perception, her
location, her employment, and her contacts with Ramos. The
district court also found De Los Santos’ testimony was help-
ful to the jury under the circumstances, but it granted Ramos
a continuing objection. Specifically, De Los Santos identified
Ramos in the footage as one of the four participants in the ini-
tial attack of Galindo in the 2A gallery, as the individual who
returned and stabbed Galindo, as the individual who retrieved
an ice machine part most likely used to break the window of
the cell where Galindo was found, and as the first individual
to set fire to the rear of the 2A gallery where Galindo was
found dead.
De Los Santos testified that it was a combination of fac-
tors that led her to identify Ramos. She was able to track and
identify Ramos after observing the following: two distinct wet
spots on the back of his sweatshirt, a towel that he had used
during his individual attack on Galindo and then discarded in
- 542 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
the fire, a view of his face and bald head when he removed
his mask and changed clothes, the way he wore his khaki
pants, the sunglasses clipped to his collar, the drenched left
side of his sweatshirt, the way that a towel was tied around his
face and neck, his interactions with his known associates, his
consistent return to his assigned cell, and his posture and the
way he walked. De Los Santos testified that after comparing a
photograph of Ramos to the video footage, she was 100 percent
certain that he was involved in Galindo’s murder.
Trantham and De Los Santos compiled a sequence of video
clips from various cameras to highlight the observations that
formed their opinions about the identifications. Trantham
asked Kevin Klippert to watch the video compilation to see
if he could identify anyone. Klippert testified that he was
Ramos’ case manager at a different correctional facility from
November 2013 until February 2014. Although they only met
in person two or three times, Klippert testified that he would
see Ramos in passing during most of his shifts, sometimes
more than once a day. During that time, he saw Ramos with
and without a stocking hat and sunglasses, his build, his
skin tone, his facial features, his facial hair, his hair, and his
walk. Klippert testified that he went to work as a unit man-
ager at TSCI in June 2016. After Ramos was transferred to
TSCI, Klippert saw him once or twice a week during mass
movements of inmates, and, according to Klippert, he could
recognize Ramos in the crowd. Klippert identified Ramos at
trial as the unmasked individual who changed his clothes in
the miniyard and later returned with the side of his sweat-
shirt appearing wet. Klippert explained that he could identify
Ramos because he saw his face, because he was wearing a
stocking hat and sunglasses as he normally did, because of
his build, because of his stature, and because of his gait or
walk. Klippert testified that he could identify Ramos with
100-percent certainty.
Ramos did not object to Klippert’s identification testimony
until after the State’s direct examination. He asserted that
- 543 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
Klippert’s testimony was improper opinion evidence under
§ 27-701 and asked that the district court strike it and admon-
ish the jury. Stating that Klippert’s testimony was “exactly
like . . . De Los Santos[’],” the district court overruled the
objection.
(b) Assignment of Error
Ramos assigns that the district court erred in allowing
the State to present opinion evidence by De Los Santos and
Klippert that was improper under § 27-701.
(c) Standard of Review
[12] 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 determining admis-
sibility. State v. Anthony,
316 Neb. 308
, 4 N.W.3d 393 (2024).
[13,14] 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.
Anthony, supra.
An appellate court
reviews the trial court’s conclusions with regard to evidentiary
foundation and witness qualification for an abuse of discre-
tion.
Id.
[15] A judicial abuse of discretion exists only when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
Id.
(d) Analysis
Ramos contends that the district court erred in allowing the
State to present testimony by De Los Santos and Klippert iden-
tifying him as one of Galindo’s attackers depicted in surveil-
lance footage. Ramos bases this argument on § 27-701, which
provides:
If the witness is not testifying as an expert, his tes-
timony in the form of opinions or inferences is limited
- 544 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a
clear understanding of his testimony or the determination
of a fact in issue.
Ramos asserts that due to the “limited” nature of De Los
Santos’ and Klippert’s encounters with him, their testimony
identifying him was not helpful to the jury. Brief for appellant
at 75. Ramos claims that De Los Santos and Klippert had “no
better ability” to identify individuals in the video footage “than
any other person,” including the trier of fact. Id. at 74-75.
We see no abuse of discretion in the district court’s decision
to admit De Los Santos’ testimony. Given the indistinct quality
of some of the video footage and De Los Santos’ familiarity
with Ramos, summarized above, it is clear that she was indeed
in a better position to identify Ramos than the jury was. Her
testimony was rationally based on her perception of Ramos
on numerous occasions in person and in video footage. As the
jury had no such familiarity with Ramos, De Los Santos’ tes-
timony definitively identifying him was helpful and therefore
admissible. It was then up to the jury to decide how much
weight to attribute to De Los Santos’ admissible testimony.
See State v. Wheeler,
308 Neb. 708
,
956 N.W.2d 708
(2021)
(credibility and weight of witness testimony are for jury to
determine).
[16] As for Klippert’s testimony, it appears that Ramos’
objection thereto was too late to preserve that issue for full
appellate review. As noted above, Ramos did not object to
Klippert’s testimony on § 27-701 grounds until after the State
had completed its direct examination, well after Klippert had
identified Ramos as one of Galindo’s attackers. Ordinarily,
an objection must be made as soon as the applicability of
it is known, or could reasonably have been known, to the
opponent. Grote v. Meyers Land & Cattle Co.,
240 Neb. 959
,
485 N.W.2d 748
(1992). See, also, State v. Pope,
305 Neb.
912
,
943 N.W.2d 294
(2020) (continuing objections are not
- 545 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
applicable to testimony given by different witness when no
objection is made to that witness).
But even assuming Ramos’ objection to Klippert’s testimony
was preserved, our reasoning that the district court did not
abuse its discretion in permitting De Los Santos’ identification
testimony applies equally to Klippert’s.
6. Motion to Transport Witnesses;
Alternative Requests to Invoke
Residual Hearsay Exception
(a) Background
Prior to trial, the district court ordered the Nebraska
Department of Correctional Services (DCS) to transport listed
inmates for trial, pursuant to Ramos’ motion. Those inmates
included Jeff Boppre and Dammon Haynes. Neither inmate
was confined in Saline County, the venue of Ramos’ trial.
Ramos also filed residual hearsay notices for Boppre and
Haynes. Boppre and Haynes later filed motions to quash
their subpoenas. At the hearing on their motions, Boppre and
Haynes both testified that they were not present for the riot
and did not have any information about Galindo’s murder.
The district court overruled the motions to quash.
At trial, Trantham testified that he investigated possible
reasons why Galindo was killed. According to Trantham, there
was evidence that Galindo “had a drug issue.” He testified,
“We had one inmate that had mentioned hearing an argument
of some kind about a drug being shorted on drug transfer, drug
transaction. We tried to flush that out during interviews and
came up with a dead-end.” Relatedly, an inmate testified that
he told investigators that he had heard Galindo was killed by
his drug suppliers; the inmate further testified that Ramos was
with him during the riot and not involved in killing Galindo.
After the State rested its case in chief, Ramos asked the
district court to enforce his subpoena of Boppre and to direct
DCS to bring him to court the following day, by force if
necessary, because Boppre was material to Ramos’ defense.
- 546 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
To avoid putting others at risk of physical harm, the district
court declined to authorize the use of force. Alternatively,
Ramos asked the district court to grant his residual hearsay
request. The State stipulated that Boppre was unavailable for
purposes of the residual hearsay exception. Ramos’ counsel
subsequently explained that Ramos was not proceeding with
his residual hearsay request as to Haynes, “given some of
the testimony and evidence that’s already before the jury on
that issue.”
At a hearing on the residual hearsay request as to Boppre,
the district court heard and received exhibits and testimony
related to interviews with Boppre conducted by Trantham.
There was evidence that upon Boppre’s request, Trantham
interviewed Boppre in March and June 2017. Boppre told
Trantham that he and Galindo had become close friends
before Galindo was transferred to the 2A gallery. During the
first interview, Boppre asked Trantham not to include his
name in the paperwork because he feared for his safety. After
Boppre asked that the interview stop being recorded, he told
Trantham that he had helped Galindo pay off a $100 drug
debt. He refused to identify who outside the prison helped
him pay the debt. Trantham understood that Boppre learned
of the debt from Galindo. Trantham was not able to verify the
payment by Boppre or substantiate that Galindo owed a drug
debt. During both interviews, Boppre focused on attributing
Galindo’s death to DCS and on his own legal case.
The district court overruled Ramos’ request to admit Boppre’s
statements under the residual hearsay exception. It found that
Boppre appeared credible until the interview stopped being
recorded. But because Boppre was unavailable by his own
choice not to testify, the district court found that admitting
his statements would not serve the interests of justice. It also
found that Boppre was in police custody when he made the
statements, he appeared to be “somewhat of a conspiracy
theorist on several levels,” he had no motive to avoid his own
criminal liability, his statements were not made in response to
- 547 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
leading questions, he spent his second interview complaining
about the prison, and he spoke little about anything relevant to
Ramos’ case.
(b) Assignments of Error
Ramos assigns that the district court erred in (1) failing to
order DCS to transport witnesses material to his defense and
(2) denying his request to present those witnesses’ statements
through the residual hearsay exception.
(c) Standard of Review
[17] Because of the factors a trial court must weigh in
deciding whether to admit evidence under the residual hearsay
exception, an appellate court applies an abuse of discretion
standard to review hearsay rulings under this exception. State
v. Stricklin,
290 Neb. 542
,
861 N.W.2d 367
(2015).
(d) Analysis
Ramos assigns that the district court erred in denying his
motion to transport witnesses and his alternative motion to
present their statements via the residual hearsay exception.
He asserts that by rebuffing these efforts to present the state-
ments of both Boppre and Haynes, the district court deprived
Ramos of his constitutional right to a meaningful opportunity
to present a complete defense. Ramos claims that Boppre and
Haynes would have provided a motive for other inmates to kill
Galindo, which he contends would have supported his defense
that he was misidentified as one of Galindo’s attackers.
Whether rooted directly in the Due Process Clause of the
14th Amendment or in the Compulsory Process or Confronta
tion Clauses of the 6th Amendment, the federal Constitution
guarantees criminal defendants a meaningful opportunity to
present a complete defense. State v. Poe,
276 Neb. 258
,
754
N.W.2d 393
(2008). In arguing that the exclusion of Boppre’s
and Haynes’ statements violated his constitutional right to
present a complete defense, Ramos relies on Holmes v. South
Carolina,
547 U.S. 319
,
126 S. Ct. 1727
,
164 L. Ed. 2d 503
- 548 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
(2006). In Holmes, the U.S. Supreme Court held that a defend
ant’s right to present a complete defense is violated when the
trial court excludes evidence of third-party guilt based on the
application of a rule that is arbitrary or disproportionate to
the purposes the rule is designed to serve. Ramos seems to
posit that the rules the district court applied were arbitrary or
disproportionate to their purposes simply because they resulted
in the exclusion of evidence that might have contributed to his
defense. But we discern no arbitrary or disproportionate appli-
cation of exclusionary rules here.
We first take up the motion to transport. In assigning and
arguing that the district court erred in overruling it, Ramos
overlooks the fact that his motion to transport was sustained.
To the extent that Ramos argues that the district court should
have forced Boppre and Haynes to testify, he does not explain
how the basis for the district court’s decision not to order the
use of force was arbitrary or disproportionate to its purpose.
Nor does he identify how the Constitution would have obli-
gated the district court to compel testimony. To the contrary,
we have held that a criminal defendant does not possess an
absolute constitutional right to demand the personal attendance
of a prisoner witness incarcerated outside the county of the
venue of trial. See State v. Stott,
243 Neb. 967
,
503 N.W.2d
822
(1993), disapproved on other grounds, State v. Johnson,
256 Neb. 133
,
589 N.W.2d 108
(1999). Ramos has illuminated
no error concerning the motion to transport.
As for Ramos’ assertions that the district court erred in
refusing to allow the statements of Boppre and Haynes on
residual hearsay grounds, he fares no better. First off, at trial,
Ramos abandoned this argument with regard to Haynes, so we
need not address Haynes’ statements further. And looking to
the district court’s decision not to admit Boppre’s statements to
Trantham under the residual hearsay exception, as we demon-
strate below, we perceive no abuse of discretion.
[18] Defendants have a constitutional right to a meaning-
ful opportunity to present a complete defense, but this right
- 549 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
is not without evidentiary limits. We have observed that the
accused does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible
under standard rules of evidence. State v. Clausen,
307 Neb.
968
,
951 N.W.2d 764
(2020). Ramos tacitly concedes that
Boppre’s statements would be inadmissible hearsay under the
standard rules of evidence unless the residual hearsay excep-
tion applies.
[19] Under the residual hearsay exception, when the declar-
ant is unavailable as a witness, the trial court has discretion to
admit a hearsay statement of that declarant “not specifically
covered” by any other hearsay exception. See
Neb. Rev. Stat.
§ 27-804
(2)(e) (Reissue 2016). In determining whether a state-
ment is admissible under the residual hearsay exception to
the hearsay rule, a court considers five factors: a statement’s
trustworthiness, the materiality of the statement, the proba-
tive importance of the statement, the interests of justice, and
whether notice was given to an opponent. State v. Stricklin,
290
Neb. 542
,
861 N.W.2d 367
(2015). See, also, § 27-804(2)(e).
[20] In determining admissibility under the residual hearsay
exception, a court must examine the circumstances surrounding
the declaration in issue and may consider a variety of factors
affecting the trustworthiness of a statement. A court may com-
pare the declaration to the closest hearsay exception, as well
as consider a variety of other factors affecting trustworthiness,
such as the nature of the statement, that is, whether the state-
ment is oral or written; whether a declarant had a motive to
speak truthfully or untruthfully, which may involve an exami-
nation of the declarant’s partiality and the relationship between
the declarant and the witness; whether the statement was made
under oath; whether the statement was spontaneous or in
response to a leading question or questions; whether a declar-
ant was subject to cross-examination when the statement was
made; and whether a declarant has subsequently reaffirmed or
recanted the statement. Stricklin, supra.
- 550 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE V. RAMOS
Cite as
319 Neb. 511
Considering the factors above, we conclude that the district
court did not abuse its discretion in declining to allow Boppre’s
statements to Trantham into evidence pursuant to the residual
hearsay exception. The statements’ trustworthiness was dimin-
ished because they were not given under oath or subject to
cross-examination; were oral, rather than written; and focused
on Boppre’s complaints about the prison and his own case,
rather than on who killed Galindo. Moreover, Boppre refused
to have his statement about the drug debt recorded or to reaf-
firm it in court. And Boppre’s statement to Trantham about
Galindo’s owing a drug debt was double hearsay, because
Boppre was relaying to Trantham what Galindo had told him.
See,
Neb. Rev. Stat. § 27-801
(3) (Cum. Supp. 2024) (defining
hearsay);
Neb. Rev. Stat. § 27-805
(Reissue 2016) (defining
double hearsay). Given that Boppre’s hearsay statements were
properly excluded, Ramos has failed to demonstrate he was
deprived of his right to a meaningful opportunity to present a
complete defense. See Stricklin, supra (exclusion of hearsay
statement under hearsay rule did not violate defendant’s right
to present complete defense); State v. Phillips,
286 Neb. 974
,
840 N.W.2d 500
(2013) (same).
Our conclusion that Ramos was not deprived of his right
to present a complete defense is further confirmed by the
fact that the district court received other evidence alluding to
Galindo’s “drug issues” or an unsatisfactory drug transaction
as possible motives for the attack. With other evidence about
Galindo’s drug issues having been presented, any exclusion of
Boppre’s reference to a paid drug debt would not have violated
Ramos’ right to present a complete defense.
IV. CONCLUSION
In light of our reasoning above, we find no merit to Ramos’
assignments of error and therefore affirm.
Affirmed.
Miller-Lerman, J., participating on the briefs.
Freudenberg and Bergevin, JJ., not participating.

AI Case Brief

Ask AI About This Case

Full Opinion

Case Information