State v. Riley

State of NebraSka , appellee , v.
aNthoNy D. riley ii, appellaNt.
796 N.W.2d 371
Filed April 28, 2011. 	No. S-09-731.
1. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
Based upon our de novo review of the record made before the
hearing master, to which no exceptions were taken, and our
consideration of all pleadings and reports filed herein, this
court adopts the hearing master’s report in its entirety. Based
on the report, we conclude that Respondent is a nonlawyer
who has repeatedly engaged in the practice of law as defined
by § 3-1001(A) and (B). We agree with the hearing master’s
recommendation that injunctive relief is appropriate and neces-
sary given Respondent’s “intractable attitude” in response to
the Commission’s efforts to obtain his voluntary compliance
with our rules prohibiting the unauthorized practice of law. The
undisputed facts presented in this record clearly demonstrate a
very real risk of harm to the public if Respondent’s conduct is
not enjoined.
Accordingly, by separate order entered on April 22, 2011,
Respondent will be enjoined from engaging in the unautho-
rized practice of law in any manner, including but not limited
to: rendering legal advice or counsel to others for compensa-
tion; selecting, drafting, or completing for another entity or
person legal documents or pleadings to be filed in the courts of
this state; and filing any pleadings on behalf of another entity
or person in any court of this state. Noncompliance with this
order of injunction shall constitute contempt punishable under
this court’s inherent power and § 3-1019.
iNjuNctioN iSSueD.
Wright, J., not participating.
394 	281 NeBRASkA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

3. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
4. Motions for Mistrial. egregiously prejudicial statements of counsel, the improper
admission of prejudicial evidence, and the introduction to the jury of incompetent
matters provide examples of events which may require the granting of a mistrial.
5. Polygraph Tests: Prejudicial Statements. Although the results of a polygraph
test are not admissible in evidence, the mere mention of the word “polygraph,”
absent more, does not constitute prejudicial error.
6. Constitutional Law: Criminal Law: Double Jeopardy: Evidence: New Trial:
Appeal and Error. The Double Jeopardy Clauses of the federal and state
Constitutions do not forbid a retrial after an appellate determination of prejudicial
error in a criminal trial so long as the sum of all the evidence admitted by the
trial court, whether erroneously or not, would have been sufficient to sustain a
guilty verdict.
7. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
Appeal from the District Court for Lancaster County: joDi
NelSoN, Judge. Reversed and remanded for a new trial.
peter k. Blakeslee for appellant.
Jon Bruning, Attorney General, James D. Smith, and erin e.
Tangeman for appellee.
heavicaN, 	c.j., 	Wright, 	coNNolly, 	gerrarD, 	StephaN,
MccorMack, and M iller-lerMaN, JJ.
M iller-lerMaN, J.
NATURe oF CASe
Anthony D. Riley II appeals his convictions in the district
court for Lancaster County for manslaughter and three counts
of attempted second degree murder. We conclude that the dis-
trict court erred when it overruled Riley’s motion for a mistrial
based on the polygraph testimony of the alternate suspect,
Terrell Jones. We reverse the convictions, and because the evi-
dence was sufficient to support the convictions, we remand the
cause for a new trial.
STATeMeNT oF FACTS
This case generally involves an incident in which shots were
fired from one vehicle into another vehicle, causing one death
STATe v. RILey 	395
Cite as 281 Neb. 394

and injuries to the occupants of the second vehicle. Riley was
charged with second degree murder in connection with the
August 6, 2006, shooting death of Doyle Bryant and with three
counts of attempted second degree murder with regard to three
other men who were in the vehicle with Doyle when he was
shot. Riley was also charged with one count of unlawful dis-
charge of a firearm at an occupied vehicle and five counts of
use of a weapon to commit a felony. A jury found Riley guilty
of the lesser-included offense of manslaughter and the three
counts of attempted second degree murder but returned verdicts
of not guilty on the unlawful discharge of a firearm and use of
a weapon charges.
According to testimony at trial, on the evening of August
5, 2006, Doyle, his brother Daryl Bryant, their cousin LaRon
Tolbert, and their friend Lynell Green drove from omaha,
Nebraska, to Lincoln, Nebraska, to celebrate Doyle’s recent
graduation and new job. Sometime near midnight, the group
went to a nightclub in downtown Lincoln, where there was a
line to enter the club. They waited for a time but decided they
were not going to get in. Tolbert and Green left to get the car,
while Doyle and Daryl waited outside the club. While waiting
for Tolbert and Green to pick them up, Doyle and Daryl wit-
nessed a fight break out on the street outside the club.
With Green driving the car, Doyle in the front passenger
seat, and Daryl and Tolbert in the back seat, the men drove
around downtown Lincoln. As they approached the intersection
of 27th and o Streets, Green noticed the driver of another car
staring at them “like he had a problem or something.” After
Green turned the car onto o Street, the men decided to return
to omaha. As Green headed back to North 27th Street, he saw
that the car he had noticed earlier was behind them. He was
surprised because the car had been headed in another direction
and would have needed to turn around in order to be behind
them. Green drove north on North 27th Street, and when he
stopped for a light at Cornhusker Highway, he saw that the
other car was directly behind them.
When the light changed, Green continued north on North
27th Street and the other car followed. eventually, near the
intersection of North 27th Street and Folkways Boulevard, the
396 	281 NeBRASkA RepoRTS

other car sped up and began to pass the car Green was driving.
As the car passed in the left lane, five or six gunshots were
fired into the car driven by Green. one bullet struck Green in
the upper left thigh. He tried to stop the car by braking, but lost
control. The car went off the street and hit a pole. In addition
to Green’s being shot in the thigh, Daryl was shot through the
leg, and Doyle was shot through the arm and chest. Doyle died
from the gunshot wounds.
A broadcast went out to Lincoln police with a description
of the car involved in the shooting and a description of the
driver. At about 2:30 a.m., two police officers responded to
a call regarding a loud party. As they approached the house,
they noticed a car parked near the house that matched the
description of the car involved in the shooting. The officers
saw two men standing next to the car, and one of the men
matched the description of the driver of the car from which the
gunshots were fired. The man identified himself to the police
as o’Dari Wiley and told them that the car was owned by his
cousin, Riley. The police then spoke to Riley, who first identi-
fied himself by a false name but later admitted his true name.
Riley and Wiley were taken to a police station for interviews.
Both denied being involved in the shooting and provided
alibis for the evening. Green arrived at the police station and
identified Wiley as the driver of the car from which the shots
were fired.
Further investigation led police to determine that Jones and
Tramel patterson were also occupants of Riley’s car at the time
gunshots were fired from Riley’s car. The men initially denied
being in the car or being involved in the shooting, but eventu-
ally Wiley, Jones, and patterson admitted that they were in
the car at the time of the shooting, and they each asserted that
Riley had fired the shots into the car driven by Green.
According to Wiley’s testimony at trial, on the night of the
shooting, Wiley, Riley, Jones, and patterson had been at the
same club where Doyle and his companions had waited in line.
When they left the club, they became involved in a street fight
with several other people. They then got into Riley’s car, with
Wiley driving, patterson in the front passenger seat, Jones in
the back seat on the driver’s side, and Riley in the back seat
STATe v. RILey 	397
Cite as 281 Neb. 394

on the passenger’s side. Jones and Riley were upset about the
fight and angry that they had been “jumped” outside the club.
Jones saw a car driving by and said that the occupants of the
car looked like the men who had jumped them. Riley said, “I
want to get them. I want to kill these guys.” Riley asked Wiley
to stop the car and pop open the hood. Wiley did not see what
Riley did, but he knew that Riley kept a gun under the hood of
the car.
They began following the car near the intersection of 27th
and o Streets and followed it north on North 27th Street.
Riley told Wiley to catch up to the other car, and Jones said he
wanted to fight the men in the car. As Wiley pulled up in the
left lane with the other car in the right lane, he signaled to the
men in the car that he wanted to fight. The driver of the other
car gave a signal that Wiley took to mean he agreed to fight. As
the cars moved, Wiley heard five or six gunshots and thought
that someone from the other car was firing at them. After the
shooting stopped, he looked toward the back seat and saw that
Riley had a gun in his left hand. Riley yelled that he hoped
one of the men in the other car was dead. Riley waved the gun
and told Wiley to drive him home. Riley went into his apart-
ment and came out with a bag containing gun shells. Riley said
he needed to get rid of the shells, and he dropped them into
a street drain. Wiley drove to the party where the police later
found him and Riley.
Riley was arrested for the shootings. The State charged him
with second degree murder, three counts of attempted second
degree murder, unlawful discharge of a firearm into an occu-
pied vehicle, and five counts of use of a weapon to commit
a felony.
prior to trial, the State filed a motion in limine seeking an
order to prevent Riley from “discussing in voir dire, opening
statement, [or] closing argument, or adducing any evidence
regarding . . . [p]olygraph results and any reference to taking or
refusing to take polygraphs of any of the State’s witness[es].”
In another motion in limine, the State sought an order to pre-
vent Riley from discussing or adducing “[e]vidence of the facts
or circumstances [of the] State’s Witnesses’ convictions or
arrests beyond eliciting whether they [sic] were convictions in
398 	281 NeBRASkA RepoRTS

the last 10 years and whether they were felonies or crimes of
dishonesty.” The court sustained both motions in limine.
At trial, the focus of Riley’s defense was that Jones rather
than Riley fired the shots into the other car. Jones testified as
a witness for the State. During Riley’s cross-examination of
Jones, Riley questioned Jones regarding a police interview of
Jones. Jones acknowledged that the police investigator had
told Jones that the police suspected him of being the shooter.
Riley then asked Jones whether the investigator had said that
one reason he suspected Jones was because Jones had “spent
time for shooting at people in a car before.” The State objected
to the question on the basis of hearsay and because it violated
the order in limine directing Riley not to ask about the facts or
circumstances of the prior convictions of the State’s witnesses.
The court found that the question violated its order sustaining
the motion in limine, and it sustained the State’s objection.
Riley thereafter made an offer of proof designed to show that
the current shooting was similar to a “signature crime” for
which Jones had previously been convicted. See Neb. evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008). Riley con-
tinued that if allowed to testify on the matter, Jones would say,
inter alia, that in 2002, while traveling on North 27th Street, he
had fired a gun from one moving vehicle into another and that
he had been convicted and imprisoned for that crime.
Later in Riley’s cross-examination of Jones, Riley ques-
tioned Jones regarding Jones’ communications with patterson,
who was Jones’ brother. Riley asked whether Jones com-
municated regularly with patterson after Jones’ arrest in con-
nection with the current shooting incident and asked spe-
cifically whether Jones had called patterson to discuss what
he had told the police. During this questioning, the following
exchange occurred:
Q. [Riley’s attorney] okay. you called [patterson] your-
self and told him what you’d done —
A. [Jones] yeah.
Q. — as far as the proffer’s concerned.
A. Uh, I believe so, yeah. No, when I talked to him I
told him I had took — uh — a polygraph test. That’s what
I told him. That’s when I talked to him.
STATe v. RILey 	399
Cite as 281 Neb. 394

Riley immediately asked permission to approach the bench
and moved for a mistrial because the order sustaining the
State’s motion in limine prohibited references to polygraph
tests. The court released the jury in order to hear argument
on the motion outside the jury’s presence. Riley noted that his
questions did not lead Jones to say that he had taken a poly-
graph test. Riley argued that after the jury heard that Jones had
taken a polygraph test, because Riley and not Jones was on
trial as the shooter, the only conclusion the jury could reach
was that Jones had passed the polygraph test and could not be
the alternate suspect as urged by Riley in his defense. Riley
also advised the court that in fact Jones had failed the poly-
graph test.
In considering the motion for a mistrial, the court received
evidence, including the results of Jones’ polygraph test which
indicated that Jones had failed the test and that he had reacted
both when he stated that Riley had fired the shots and when he
denied that he himself had fired the shots. Riley asked that if
the court overruled his motion for a mistrial, he be allowed to
present the polygraph test results to the jury. The court found
that Jones’ mention of a polygraph test was inadvertent and
overruled the motion for a mistrial. The court stated that there
would be no evidence put before the jury of whether or not
Jones took a polygraph test or of the results. The court struck
Jones’ answer and instructed the jury to disregard it.
In his defense, Riley testified that Jones fired the shots into
the other car. Riley testified that he was not involved in the
fight outside the club but that his companions apparently got
involved in the fight while he was getting the car. He also
disputed testimony by the other witnesses that he was in the
back seat on the passenger’s side when the shooting occurred.
He testified instead that he was in the back seat on the driver’s
side and that Jones was on the passenger’s side. Riley testified
that Jones was angry about being jumped outside the club and
that when they spotted the other car, Riley had no reason to
think the men in the car had been involved in the fight. Riley
testified that he saw Jones fire shots into the other car but that
before Jones fired the shots, he did not know that Jones had a
gun with him.
400 	281 NeBRASkA RepoRTS

Riley testified that he initially lied to the police about the
shooting because he was scared for his life. In connection with
such testimony, Riley again attempted to present evidence of
the 2002 shooting by Jones. The court allowed Riley to testify
to what he had learned of the prior shooting for the limited
purpose of establishing that Riley feared Jones. prior to such
testimony, the court instructed the jury that the evidence was
not received for the purpose of showing that Jones acted in
conformity with his prior acts in this instance but instead for
the limited purpose of explaining why Riley did not initially
tell police that Jones fired the shots. The court instructed the
jury that it must not consider the evidence for any other pur-
pose. Riley then testified that he had heard that in 2002, Jones
“got into it with somebody at [a store] on 27th Street [and]
ended up firing into the car” and that Jones then “ended up in
another car with somebody else driving up 27th Street, firing
at the same car.”
Following its receipt of evidence, the court instructed the
jury on manslaughter as a lesser-included offense of second
degree murder. The court instructed that one of the elements
of manslaughter was that the defendant caused the death of
another “unintentionally while in the commission of an unlaw-
ful act.” The court did not define “unlawful act,” nor did it
specify the unlawful act Riley was alleged to have been com-
mitting when he caused Doyle’s death. Riley did not object to
the manslaughter instruction, nor did he request an instruction
defining “unlawful act” or specifying the unlawful act.
The jury returned guilty verdicts for manslaughter and three
counts of attempted second degree murder. The jury, however,
found Riley not guilty of unlawful discharge of a firearm at an
occupied vehicle and not guilty of the five counts of use of a
weapon to commit a felony.
Riley moved for a new trial on various bases. The court
overruled the motion and thereafter sentenced Riley to impris-
onment for 20 to 20 years on the manslaughter conviction and
for 8 to 15 years on each of the three attempted second degree
murder convictions. The court ordered all the sentences to be
served consecutive to one another.
Riley appeals his convictions.
STATe v. RILey 	401
Cite as 281 Neb. 394

ASSIGNMeNTS oF eRRoR
Riley claims that the district court erred when it (1) over-
ruled his motion for a mistrial based on Jones’ testimony that
he took a polygraph test, (2) refused thereafter to allow Riley
to present evidence of the results of Jones’ polygraph test, (3)
limited Riley’s cross-examination of Jones regarding Jones’
prior shooting conviction and instructing the jury to limit its
use of the evidence regarding the prior shooting, (4) gave a
lesser-included offense instruction on the elements of man-
slaughter without specifying the underlying unlawful act, and
(5) overruled Riley’s motion for a new trial. Riley also asserts
that there was not sufficient evidence to support the verdict,
that his rights to due process and a fair trial were violated
when the jury returned verdicts that were inconsistent, and that
the cumulative effect of various trial errors deprived him of his
“right to a public trial by an impartial jury.”
STANDARDS oF ReVIeW
[1,2] The decision whether to grant a motion for mistrial
is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). An
abuse of discretion occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
ANALySIS
The District Court Erred When It Overruled
Riley’s Motion for a Mistrial Based on
Jones’ Polygraph Testimony.
Riley claims that the district court erred when it overruled
his motion for a mistrial after Jones testified that he had taken
a polygraph test. We conclude that because Riley’s assertion
that it was Jones rather than Riley who fired the shots at the
other car was central to Riley’s defense, Jones’ testimony that
he had taken a polygraph test, accompanied by the fact that
Jones was not the defendant and the implication that Jones had
passed the test, were prejudicial to Riley, and the district court
402 	281 NeBRASkA RepoRTS

erred when it denied Riley’s motion for a mistrial. We reverse
on this basis.
[3,4] A mistrial is properly granted in a criminal case where
an event occurs during the course of a trial which is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial. Id. egregiously prejudicial statements of counsel, the
improper admission of prejudicial evidence, and the introduc-
tion to the jury of incompetent matters provide examples of
events which may require the granting of a mistrial. Id.
The basis of Riley’s motion for a mistrial was Jones’ tes-
timony in response to a question on cross-examination about
Jones’ communications with patterson, his brother, after Jones
had been arrested in connection with the shooting. Although
the question was not designed to elicit testimony regarding
a polygraph test, Jones testified that “when I talked to him I
told him I had took — uh — a polygraph test.” Riley imme-
diately moved for a mistrial, and the court dismissed the jury
for the evening in order to hear argument from counsel and
consider the motion outside the jury’s presence. The court
overruled the motion, and when the jury returned to the
courtroom the next morning, the court instructed the jurors
that “the last answer given by . . . Jones” the prior day was
stricken and was to be disregarded by the jury and not consid-
ered for any purpose.
[5] We have stated that although the results of a polygraph
test are not admissible in evidence, the “mere mention of the
word ‘polygraph,’ absent more, does not constitute prejudicial
error.” State v. Anderson and Hochstein, 207 Neb. 51, 67, 296
N.W.2d 440, 451 (1980). In State v. Beach, 215 Neb. 213, 337
N.W.2d 772 (1983), we concluded that a reference to a poly-
graph test was not prejudicial and that therefore, the trial court
did not err when it overruled a motion for a mistrial based
on such reference. In Beach, we noted that the circumstances
of the case were similar to those in Anderson and Hochstein,
supra, and another case in which we had concluded that a
reference to a polygraph test was not prejudicial. We noted
that in all three cases, “the mention of a polygraph test was
inadvertent and unrequested; the results of the tests were not
STATe v. RILey 	403
Cite as 281 Neb. 394

disclosed; the reference was properly objected to; and the trial
court instructed the jury to disregard the references to the poly-
graph tests.” 215 Neb. at 218, 337 N.W.2d at 776.
Although the factors in Beach and Anderson and Hochstein
were also present in this case, the fact that the mention of
the polygraph test was by Jones—who Riley claimed was the
shooter—requires a different result. Similar to the previous
cases, Jones’ reference to the polygraph test was not prompted
by the State, the results of the test were not disclosed, Riley
objected immediately, and the court instructed the jury to disre-
gard the answer that included the reference. However, there are
other factors present in this case that lead us to conclude that
Jones’ reference to having taken a polygraph test was prejudi-
cial to Riley and that therefore, the court should have granted
Riley’s motion for a mistrial.
Contrary to the cases noted above where we cited the fact
that the polygraph test results were not disclosed as a factor
tending to minimize prejudice to the defendant, in this case, the
fact that the results were not disclosed to the jury increased the
risk of prejudice to Riley. We note that a central part of Riley’s
defense was his assertion that he did not shoot into the other
car and that instead it was Jones who fired the shots. Because
both Riley and Jones testified at trial and accused each other
of firing the shots, the relative credibility of each man’s testi-
mony was crucial to the jury’s determination of whether there
was a reasonable doubt whether Riley fired the shots. When
Jones stated that he had taken a polygraph test, the jury could
reasonably have inferred that Jones passed the polygraph test,
because the State charged Riley with having fired the shots. If
the jury presumed that Jones passed the polygraph test, such
presumption could readily have caused the jury to find Jones’
testimony more credible than Riley’s. The jury’s presumption
that Jones passed the polygraph test could have given Jones
an undeserved badge of credibility, because in fact Jones did
not pass the polygraph test. In this regard, we note that in sup-
port of his motion for a mistrial, Riley presented evidence that
Jones had failed the polygraph test and that Jones had specifi-
cally reacted to questions about whether he or Riley had fired
the shots.
404 	281 NeBRASkA RepoRTS

In State v. Edwards, 412 A.2d 983 (Me. 1980), the Supreme
Judicial Court of Maine concluded that a brief mention of a lie
detector test was prejudicial, because the witness who stated
that she took the test was the victim of the alleged sexual mis-
conduct and her credibility was central to the case against the
defendant. The court stated:
When the prosecutor’s questioning inadvertently elicits
a witness’s reference to a polygraph test, there is cause
for mistrial if, but only if, the reference to the test raises
an inference about the result that substantially prejudices
the defendant’s case. . . . In deciding whether to grant or
deny a defendant’s motion for mistrial in such a situation,
the trial court must weigh various factors bearing on the
substantiality of any resulting prejudice to the defendant.
Among other factors, it must determine (1) whether the
inference as to the result of the test may be crucial in
assessing the witness’s credibility, and (2) whether “the
witness’s credibility play[s] a vital role in the case.”
Id. at 985 (citations omitted). The court in Edwards concluded
that the reference to the lie detector test was substantially preju-
dicial and required a mistrial because the victim’s statement
“was sufficient to inform the jury that she had taken the test,
and the natural and reasonable implication of the reference was
that she had passed it.” Id. at 987.
Similarly, the Court of Appeals of Maryland in Guesfeird
v. State, 300 Md. 653, 480 A.2d 800 (1984), concluded that a
mistrial was required when the complaining witness inadvert-
ently testified that she had taken a lie detector test. The court
reasoned, “knowing that a witness took a lie detector test, a
jury might make the unmistakable inference that the results of
the test were that the witness told the truth, and is telling the
truth as he [or she] testifies.” Id. at 661, 480 A.2d at 804.
The State notes that in State v. Vrchota, 212 Neb. 567,
324 N.W.2d 394 (1982), this court held that a mistrial was
not required where an accomplice to a theft testified that he
had taken a polygraph test. We noted that the reference to
the polygraph test was volunteered by the witness, that the
result of the test was not disclosed, that prompt objection was
made to the reference, and that the court instructed the jury
STATe v. RILey 	405
Cite as 281 Neb. 394

to disregard the reference. The present case is distinguishable
from Vrchota because Riley’s theory of defense presents Jones
as the alternate suspect for the shooting, and therefore the rela-
tive credibility of Jones’ and Riley’s testimony is more squarely
at issue. Jones was not on trial as an accomplice. Where the
witness is an accomplice, as in Vrchota, the evidence is that
both persons took part in the crime. Where the witness is an
alternate suspect, as in the present case, the witness’ credibility
is central to the case.
In Hembree v. State, 546 S.W.2d 235, 240 (Tenn. Crim. App.
1976), the court concluded that testimony a witness took a lie
detector test was prejudicial and that the prejudice could not
be cured by the trial court’s striking the testimony, because the
“proof was that either this witness or the [defendant] shot the
deceased and the jury’s knowledge of a successful lie detector
test probably served to bolster and give greater weight to this
witness’s testimony.” See, also, Simeon v. State, 520 So. 2d
81, 83 (Fla. App. 1988) (witness’ reference to having taken lie
detector test impermissibly bolstered his testimony and was not
harmless where witness was “the defendant’s primary accuser
and the only alternative actual offender”); Morris v. State, 264
Ga. 823, 452 S.e.2d 100 (1995) (references to witness’ having
taken lie detector test bolstered his credibility and his testi-
mony that he had nothing to do with murder).
We note further that the motion in limine to prevent refer-
ences to polygraph tests was filed by the State, and the State
had a duty to ensure that its witnesses did not make such refer-
ences. In this regard, we refer to the observation of the kansas
Supreme Court which provides:
Whether there is an order in limine or not, a prosecutor
has the duty to guard against statements by his or her wit-
nesses containing inadmissible evidence. If the prosecutor
believes a witness may give an inadmissible answer dur-
ing his or her examination, the prosecutor must warn the
witness to refrain from making such a statement.
State v. Crume, 271 kan. 87, 101, 22 p.3d 1057, 1068 (2001).
We agree with the reasoning of the kansas Supreme Court
and note that in preparing Jones for trial, it would have been
prudent for the State to have warned Jones to refrain from
406 	281 NeBRASkA RepoRTS

mentioning that he had taken a polygraph test. Although Jones’
reference to the polygraph test was made while he was being
cross-examined by Riley, Riley’s question to Jones was not
designed to prompt Jones to mention the polygraph test. Jones
was the State’s witness, and it was the responsibility of the
State to instruct Jones on his obligation to comply with the
order in limine.
Because of the importance of Jones as the alternate suspect,
we conclude that Jones’ reference to having taken a polygraph
test, accompanied by the inference that he passed the test, were
prejudicial to Riley’s defense and that the damaging effect of
the testimony could not be removed by admonition or instruc-
tion to the jury. We therefore conclude that the district court
abused its discretion when it overruled Riley’s motion for a
mistrial based on the polygraph reference. Because the dis-
trict court should have granted the motion for a mistrial, we
reverse Riley’s convictions for manslaughter and three counts
of attempted second degree murder.
Because the Evidence Was Sufficient to Support
Riley’s Convictions, a New Trial May Be
Held on Remand.
Having found reversible error, we must consider whether
Riley can be subjected to a retrial. We conclude that with
regard to the charges of which Riley was convicted—one count
of manslaughter and three counts of attempted second degree
murder—the evidence introduced at the trial, whether errone-
ously or not, was sufficient to sustain the guilty verdicts and
that therefore, Riley can be retried on such charges.
[6] The Double Jeopardy Clauses of the federal and state
Constitutions do not forbid a retrial after an appellate deter-
mination of prejudicial error in a criminal trial so long as the
sum of all the evidence admitted by the trial court, whether
erroneously or not, would have been sufficient to sustain
a guilty verdict. State v. Ford, 279 Neb. 453, 778 N.W.2d
473 (2010).
We note first that the jury acquitted Riley of one count of
unlawful discharge of a firearm at an occupied vehicle and five
counts of use of a weapon to commit a felony. Therefore, Riley
STATe v. RILey 	407
Cite as 281 Neb. 394

may not be retried for such charges on remand. See State v.
Huff, 279 Neb. 68, 776 N.W.2d 498 (2009) (Double Jeopardy
Clauses of both federal and Nebraska Constitutions protect
against, inter alia, second prosecution for same offense after
acquittal). We note also that the jury acquitted Riley of second
degree murder when it found him guilty of the lesser-included
offense of manslaughter; therefore, Riley cannot be retried for
second degree murder on remand. See State v. White, 254 Neb.
566, 577 N.W.2d 741 (1998) (conviction of lesser-included
offense was implied acquittal of greater offense, and defendant
could not be retried for greater offense).
We must then determine whether the evidence admitted
by the district court in this case was sufficient to sustain
guilty verdicts for one count of manslaughter and three counts
of attempted second degree murder and whether Riley may
therefore be retried for such crimes. The manslaughter con-
viction related to the shooting and death of Doyle, and the
three attempted second degree murder convictions related to
attempts to cause the deaths of the other three occupants of the
vehicle—Daryl, Green, and Tolbert.
With regard to the three attempted second degree murder
convictions, we conclude that there was sufficient evidence to
support the convictions. The State needed to prove that Riley
intentionally engaged in conduct that constituted a substantial
step in a course of conduct intended to culminate in the com-
mission of murder in the second degree, which is defined as
causing the death of each of the victims intentionally, but with-
out premeditation. See Neb. Rev. Stat. §§ 28-201 and 28-304
(Reissue 2008). There was evidence, mainly the testimony of
Wiley, Jones, and patterson, from which the jury could have
found that Riley intended to cause the deaths of all the occu-
pants of the vehicle and that he took a substantial step in the
commission of such crimes by firing a gun into the vehicle
several times.
With 	regard 	to 	the 	manslaughter 	conviction, 	the 	court
instructed the jury on second degree murder and the lesser-
included offense of manslaughter. The jury rejected the second
degree murder charge and found Riley guilty of manslaughter.
The court instructed the jury that a conviction for manslaughter
408 	281 NeBRASkA RepoRTS

required findings that Riley “killed Doyle . . . without malice”
and that Riley “caused the death of Doyle . . . unintentionally
while in the commission of an unlawful act.”
We find that the evidence in this case supported the jury’s
verdict that Riley was guilty of manslaughter. There was evi-
dence, including the testimony of Wiley, Jones, and patterson,
that Riley fired shots into the vehicle in which Doyle was
a passenger. There was also evidence that Doyle was shot
through the arm and chest and that the gunshot wounds caused
his death. Therefore there was evidence from which the jury
could find that Riley caused the death of Doyle. There was
also evidence that the death was caused while Riley was in
the commission of an unlawful act. pursuant to Neb. Rev. Stat.
§ 28-1212.02 (Reissue 2008), it is a felony to “intentionally
discharge[] a firearm at an . . . occupied motor vehicle.” The
testimony of Wiley, Jones, and patterson supported a finding
that Riley discharged a firearm at an occupied vehicle. We
are not asked and we make no comment on whether there is
or could be evidence of another unlawful act or acts which
could serve as the unlawful act to support a manslaughter case
upon retrial.
We note that Riley assigns error in this appeal to the district
court’s purported failure to give a jury instruction specifying
the underlying unlawful act or acts or defining “unlawful act.”
We further note, however, that Riley failed to object to the
manslaughter instruction or offer an alternate instruction at
trial. Absent plain error indicative of a probable miscarriage
of justice, the failure to object to a jury instruction after it has
been submitted for review precludes raising an objection on
appeal. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
Because we have reversed the convictions on other grounds,
we need not consider whether there was plain error in the
manslaughter instruction, and although the issue may recur on
remand where the court will be required to instruct the jury on
the elements of manslaughter, Riley will have the opportunity
to object to an instruction he believes to be deficient and to
propose an alternate instruction.
We also note in this regard that on remand, the trial court
should consider whether the underlying unlawful act to support
STATe v. RILey 	409
Cite as 281 Neb. 394

a conviction for manslaughter can be unlawful discharge of a
firearm at an occupied vehicle when Riley was acquitted of
such charge in this trial. See State v. McHenry, 250 Neb. 614,
550 N.W.2d 364 (1996) (under double jeopardy principles,
acquittal of felony in previous trial prevents use of same felony
as underlying felony to support felony murder prosecution in
retrial). Again, we are not asked and make no comment on
whether there is or could be evidence of another unlawful act
or acts which could serve as the unlawful act to support a man-
slaughter case upon retrial.
We further note that Riley claims in this appeal that his
rights to due process and a fair trial were violated when the
jury returned verdicts that were inconsistent. He argues that no
rational fact finder could acquit him of the charge of unlaw-
ful discharge of a firearm at an occupied vehicle and the five
counts of use of a weapon to commit a felony but still find
him guilty of manslaughter and three counts of attempted sec-
ond degree murder. We have stated that when acquittals and
guilty verdicts on different counts in a multicount prosecu-
tion are asserted to be inconsistent, we cannot speculate as
to the reason for a jury’s verdicts and instead must consider
only whether the evidence can sustain the convictions without
speculating about the reason the jury acquitted the defendant
of other charges. See State v. Epp, 278 Neb. 683, 773 N.W.2d
356 (2009). In addition, the U.S. Court of Appeals for the
eighth Circuit has stated that “a defendant may not challenge
a conviction because it is inconsistent with another part of the
jury’s verdict.” U.S. v. Wisecarver, 598 F.3d 982, 986 (8th Cir.
2010). But see State v. Halstead, 791 N.W.2d 805 (Iowa 2010)
(holding that in case involving conviction of compound felony,
where compound felony and predicate felony are both charged,
when defendant is acquitted of underlying predicate felony,
conviction for compound felony cannot stand). Therefore, the
fact that Riley was acquitted of one count of unlawful dis-
charge of a firearm at an occupied vehicle and the five counts
of use of a weapon to commit a felony does not change our
conclusion above that the evidence in this case was sufficient
to support the convictions for manslaughter and three counts of
attempted second degree murder.
410 	281 NeBRASkA RepoRTS

This Court Need Not Address Riley’s
Remaining Assignments of Error.
[7] Having determined that Riley’s convictions should be
reversed based on the polygraph issue, we need not address
Riley’s remaining assignments of error. However, an appellate
court may, at its discretion, discuss issues unnecessary to the
disposition of an appeal where those issues are likely to recur
during further proceedings. State v. Parker, 276 Neb. 661, 757
N.W.2d 7 (2008). We discussed Riley’s assignments of error
with regard to the manslaughter instruction and the inconsistent
verdicts to the extent necessary in connection with our review
above of whether there may be a retrial on remand. We need
not comment further on such issues, and we need not consider
any of Riley’s remaining assignments of error.
CoNCLUSIoN
We conclude that the district court erred when it overruled
Riley’s motion for a mistrial based on Jones’ testimony that he
took a polygraph test. We therefore reverse Riley’s convictions
for manslaughter and three counts of attempted second degree
murder. We further conclude that there was sufficient evidence
to support Riley’s convictions and that therefore, Riley may be
retried on such charges on remand.
reverSeD aND reMaNDeD for a NeW trial .
MoATS v. RepUBLICAN pARTy oF NeB. 	411
Cite as 281 Neb. 411
rex j. MoatS, appellaNt, v. republicaN party
of NebraSka , alSo kNoWN aS the NebraSka
republicaN party, appellee .
796 N.W.2d 584
Filed April 28, 2011. 	No. S-09-929.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews
a district court’s order granting a motion to dismiss de novo, accepting all the
allegations in the complaint as true and drawing all reasonable inferences in favor
of the nonmoving party.
2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for fail-
ure to state a claim, a plaintiff must allege sufficient facts, accepted as true, to
state a claim to relief that is plausible on its face. In cases in which a plaintiff
does not or cannot allege specific facts showing a necessary element, the factual