State v. Bauldwin

point and averaged Kevin’s income. Those 4 years showed both
profits and losses.
VI. CONCLUSION
The judgment of the district court finding that the pre-
marital agreement is enforceable is reversed, and the cause
is 	remanded 	for 	further 	proceedings 	consistent 	with 	this
opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
state of nebRaska , appellee , v.
patRick b. bauldwin, appellant.
811 N.W.2d 267
Filed April 20, 2012. 	No. S-10-1217.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights:
Appeal and Error. In reviewing a motion to suppress a statement based on its
claimed involuntariness, including claims that law enforcement procured it by
violating the safeguards established by the U.S. Supreme Court in Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate
court applies a two-part standard of review. Regarding historical facts, an appel-
late court reviews the trial court’s findings for clear error. Whether those facts
meet constitutional standards, however, is a question of law, which an appellate
court reviews independently of the trial court’s determination.
2. Miranda Rights: Police Officers and Sheriffs. When a person is in custody and
interrogated by government officials, Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966), requires a now-familiar set of warnings: The
police must notify a person that he has the right to remain silent, that any state-
ment he makes may be used as evidence against him, and that he has a right to an
attorney, either retained or appointed.
3. Constitutional Law: Miranda Rights: Self-Incrimination. The Miranda warn-
ings exist to shield individuals from the inherently compelling pressures of cus-
todial interrogation. They also ensure that the Fifth Amendment privilege against
compelled self-incrimination is protected.
4. Self-Incrimination. A suspect has the right to control the time at which question-
ing occurs, the subjects discussed, and the duration of the interrogation.
5. Miranda Rights: Police Officers and Sheriffs: Self-Incrimination. Police
officers are not required to guess whether a suspect wishes to end the interroga-
tion; instead, the police must cease questioning the suspect only if the suspect’s
invocation of the right to remain silent is unambiguous, unequivocal, or clear.
678 	283 NEbRASKA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

6. Miranda Rights: Self-Incrimination: Appeal and Error. In determining
whether a suspect clearly invoked his right to remain silent, an appellate court
reviews the totality of the circumstances of the alleged invocation to assess the
words in context.
7. Miranda Rights: Police Officers and Sheriffs: Self-Incrimination. Once a
person has invoked his right to remain silent, the police must scrupulously honor
that right.
8. ____: ____: ____. Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d
313 (1975), requires a three-factor analysis in determining whether the police
scrupulously honored the right to remain silent. Those factors are (1) whether
the police immediately ceased the interrogation once the defendant invoked his
right to remain silent; (2) whether the police resumed the interrogation after
a significant time and a renewal of the Miranda warnings; and (3) whether
the police restricted the renewed interrogation to content not covered by the
first interrogation.
9. Constitutional Law: Police Officers and Sheriffs: Confessions. The test under
Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975), focuses
on what law enforcement did, and when, and not on the suspect’s response
or lack thereof. Similar to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), Mosley imposes obligations on the police, not the
suspect, to protect individuals against the inherently coercive nature of custo-
dial interrogation.
10. Constitutional Law: Convictions: Appeal and Error. Even constitutional error
does not automatically require reversal of a conviction if that error was a trial
error and not a structural defect.
11. Trial: Evidence: Confessions: Appeal and Error. The admission of an improp-
erly obtained statement is a trial error, and so its erroneous admission is subject
to harmless error analysis.
12. Verdicts: Appeal and Error. Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict would surely have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
13. Miranda Rights. Miranda protections apply only when a person is both in cus-
tody and subject to interrogation.
14. Arrests. Whether an individual is in custody requires an examination of all the
circumstances surrounding the interrogation. In making that determination, the
test is whether a reasonable person in the defendant’s situation would have felt
free to leave, and if not, then a defendant is considered to be in custody.
15. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
“Interrogation” under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), refers not only to express questioning, but also to any words
or actions on the part of the police that the police should know are reasonably
likely to elicit an incriminating response from the suspect.
16. Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion.
STATE v. bAULdWIN 	679
Cite as 283 Neb. 678

17. Rules of Evidence: Expert Witnesses. A trial judge acts as a gatekeeper for
expert scientific testimony, and must determine (1) whether the expert will testify
to scientific evidence and (2) if that testimony will be helpful to the trier of fact.
This entails a preliminary assessment whether the reasoning or methodology
underlying the testimony is scientifically valid and whether that reasoning or
methodology may properly be applied to the facts in issue.
18. Courts: Expert Witnesses. In evaluating the admissibility of expert scientific
testimony, a trial judge considers a number of factors. These factors include
whether a theory or technique can be (and has been) tested; whether it has been
subjected to peer review and publication; whether, in a particular technique,
there exists a high known or potential rate of error; whether standards exist
for controlling the technique’s operation; and whether the theory or technique
enjoys general acceptance within a relevant scientific community. These factors
are, however, neither exclusive nor binding. different factors may prove more
significant in different cases, and additional factors may prove relevant under
particular circumstances.
19. Trial: Evidence. dNA evidence without the accompanying probability assess-
ment would be inadmissible because it would not aid the trier of fact.
20. Rules of Evidence: Appeal and Error. In proceedings where the Nebraska
Evidence Rules apply, the rules control admissibility of the evidence; judicial
discretion is involved only when the rules make discretion a factor in determining
admissibility. When the Nebraska Evidence Rules commit the evidentiary ques-
tion at issue to the discretion of the trial court, an appellate court reviews the
admissibility of evidence for an abuse of discretion.
21. Trial: Rules of Evidence. A trial court exercises its discretion in determining
whether evidence is relevant and whether its probative value is outweighed by its
prejudicial effect.
22. Trial: Evidence: Appeal and Error. On appeal, a defendant may not assert a
different ground for his objection to the admission of evidence than was offered
at trial.
23. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue
2008), relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.
24. Trial: Photographs. The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must determine their relevancy
and weigh their probative value against their prejudicial effect.
25. Homicide: Photographs. In a homicide prosecution, a court may receive pho-
tographs of a victim into evidence for the purpose of identification, to show the
condition of the body or the nature and extent of wounds and injuries to it, and to
establish malice or intent.
26. Convictions: Evidence: Appeal and Error. When reviewing a criminal convic-
tion for sufficiency of the evidence to sustain the conviction, the relevant ques-
tion for an appellate court is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. And in its review, an
appellate court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence. Those matters are for the finder of fact.
680 	283 NEbRASKA REPORTS

27. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
28. 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.
29. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the amount of violence involved in the commission of the crime.
30. ____. In imposing a sentence, the sentencing court is not limited to any math-
ematically applied set of factors. The appropriateness of a sentence is necessarily
a subjective judgment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circumstances surround-
ing the defendant’s life.
Appeal from the district Court for douglas County: J.
patRick mullen, Judge. Affirmed.
Thomas C. Riley, douglas County Public defender, and
Kelly M. Steenbock for appellant.
Jon bruning, Attorney General, Erin E. Tangeman, and
James d. Smith for appellee.
heavican, 	c.J., 	connolly, 	stephan, 	mccoRmack , 	and
milleR-leRman, JJ.
connolly, J.
The State charged Patrick b. bauldwin with the first degree
murder of Pasinetta Prince. The State contended that bauldwin
physically assaulted and strangled Prince, resulting in her
death. A jury convicted bauldwin of second degree murder,
and the court sentenced him to a term of life to life in prison.
Although bauldwin raises several issues, the primary issue is
whether the police violated his Miranda rights. We conclude
that such a violation occurred—bauldwin clearly invoked his
right to remain silent during his interrogation, and the police
did not scrupulously honor that right. but based on the record
before us, we conclude this error was harmless. And because
we find no merit to bauldwin’s other assigned errors, we affirm
his conviction and sentence.
STATE v. bAULdWIN 	681
Cite as 283 Neb. 678

I. bACKGROUNd
The State contended that bauldwin murdered Prince on a
weekend in February 2006, sometime between Saturday night
and Sunday morning. At the time of Prince’s death, bauldwin
and Prince were in a relationship and living together. The
State’s theory of the case hinged on showing that bauldwin
was possessive of Prince, that they had a rocky relationship,
and that a number of events over the course of the weekend
led to a struggle between bauldwin and Prince, resulting in
Prince’s death. The relevant timeline is helpful to provide
context for bauldwin’s assigned errors, and so we provide an
overview of the weekend’s events.
1. the weekend’s events
Prince’s son also lived with bauldwin and Prince. On Friday,
February 24, 2006, following school, her son came home to
grab some clothes and asked Prince if he could spend the night
at a friend’s house. Prince said yes, and he left for the night.
That evening, bauldwin and Michelle Troxclair, his adopted
sister, shared a birthday party at a club. The party started about
9 p.m. Prince could not attend because she had a role in an
upcoming play in a local theater and had play rehearsal that
same evening.
So bauldwin and Prince went their separate ways, with
bauldwin going to the party and Prince going to rehearsal.
Prince owned two vehicles, a Chevrolet Impala and a white van.
Prince drove the van to her rehearsal, and bauldwin had the
Impala. The party ended at about 1 a.m. when the club closed.
Following the party, bauldwin went to his brother’s house for
an after-hours party. That party ended somewhere between 2
and 3 a.m., and bauldwin then went home. Telephone records
show that on Saturday, February 25, 2006, between 2:21 and
3:22 a.m., 19 telephone calls were made to Prince’s cellular
telephone number from Prince’s home telephone number. The
record shows that bauldwin made these calls.
Meanwhile, after play rehearsal ended, Prince and a few
friends went to a bar. They stayed there until the bar closed at
1 a.m. Prince then went to a party with friends, and she stayed
there until about 3:30 to 3:45 a.m., when she left to return
682 	283 NEbRASKA REPORTS

home. At the party, Prince ran into a friend, Michael Scott, who
offered to escort her home. After Scott saw Prince pull into her
driveway, he continued on his way.
but Scott testified that he saw Prince’s Impala parked a
block or two away from Prince’s house. Finding this odd, Scott
stopped to investigate. Scott testified that he parked his vehicle
behind the Impala, looked to make sure it had not been vandal-
ized, and then walked to Prince’s house to check on her. Scott
knocked on the side door, and Prince answered, with bauldwin
standing behind her. Prince told Scott that she was fine and,
in answer to bauldwin’s questioning him, Scott explained that
he was just concerned for Prince’s safety. Scott left, but then
called Prince again to make sure she was okay; she said she
was. bauldwin then called Scott and told him to quit following
his girlfriend.
Prince and bauldwin presumably spent that Saturday morn-
ing and most of the afternoon at the house. Several telephone
calls throughout the day indicated that Prince was alive and
well. Prince’s mother spoke with Prince on the telephone
that morning. A friend of Prince spoke with Prince sometime
during that morning or early afternoon. And Prince’s son
stopped by that afternoon to pick up more clothes to spend the
night at his friend’s house again on Saturday night. He saw
Prince, but not bauldwin. Troxclair testified that finally, at
about 4:30 p.m., she received a call from bauldwin and heard
Prince in the background. This was the last time anyone heard
from Prince.
bauldwin’s 4:30 p.m. telephone call to Troxclair was about
another birthday party, this time for Troxclair’s two younger
children. The party was to take place at a hotel that night with
friends and family. Following the telephone call, at around
5 p.m., bauldwin drove Prince’s van to Troxclair’s house to
help prepare for the party. The party lasted until about 9 p.m.
bauldwin helped clean up after the party and then asked to use
Troxclair’s car at about 9:30 or 10 p.m. Troxclair agreed to
let him use her car, but asked him to also take her daughter’s
cellular telephone with him in case she needed to contact him.
bauldwin left the hotel between 10:30 and 11 p.m.
STATE v. bAULdWIN 	683
Cite as 283 Neb. 678

At around 2 a.m., Troxclair woke to change her child’s
diaper, but she realized she had left her baby supplies in the
trunk of her car. She called bauldwin to ask him to come back,
which bauldwin agreed to do. bauldwin arrived back at the
hotel within 20 minutes, and he then fell asleep in the hotel
room. The record fails to show bauldwin’s whereabouts during
that approximately 3- to 4-hour period on Saturday night into
Sunday morning.
That Sunday morning, February 26, 2006, bauldwin and
other members of his family had breakfast and checked out
of the hotel, and then bauldwin headed back to Troxclair’s
house, where he fell asleep on the couch. Later that afternoon,
bauldwin attended a barbecue at his brother’s house, with sev-
eral other family members.
2. pRince’s body discoveRed
Meanwhile, Prince’s family became worried because she had
not shown up at church. This was unusual, because Prince had
a major role in a church play that was to take place after the
service. Friends and family members tried to contact Prince
throughout the day Sunday, but to no avail.
Prince’s mother testified that she became worried enough
that she went to Prince’s house at about 5:30 p.m. When she
arrived, she knocked on the door, but no one answered. There
were no lights on inside or outside the house. She then called
the police, and officers arrived shortly thereafter. The officers
discovered Prince’s body in the basement of her home.
during 	this 	time, 	bauldwin 	was 	still 	at 	the 	barbecue.
Eventually, bauldwin and his family became aware that the
police were at Prince’s house. One of bauldwin’s brothers,
along with Troxclair, went to Prince’s house to investigate,
but they had bauldwin stay at the barbecue. Upon arriving at
Prince’s house, they were notified that Prince was dead. They
returned to the barbecue, and then bauldwin and two of his
brothers went to the police station.
The police interviewed bauldwin for about 3 hours and
audio-recorded the interview. during this interview, bauldwin
was agitated and explained to the police that he had been
drinking at the barbecue and was “blazed.” Although the police
684 	283 NEbRASKA REPORTS

asked bauldwin questions, bauldwin mainly led the interview.
He made several references to wanting a lawyer and was
eventually allowed to speak to his lawyer on the telephone.
About that time, however, bauldwin was told that he could
not leave until the police had photographed his body and
taken dNA swabs. After speaking with his lawyer, bauldwin
agreed to those procedures. The photographs showed numer-
ous small injuries on bauldwin’s body. bauldwin did not con-
fess to any crime during the interview, but certain statements
and his overall demeanor could be considered incriminating.
Following the interview, the police did not arrest bauldwin and
he was released.
3. the police investigation
and pRetRial motions
The police continued with their investigation and recovered
several pieces of evidence from the scene. A pathologist con-
ducted an autopsy and concluded that Prince had been stran-
gled. Although the crime occurred in February 2006, no arrest
warrant was issued until June 2009. A police spokesperson
explained that financial constraints limited the department’s
ability to close the case quickly. Additionally, a rash of homi-
cides occurred around that time, which meant that the detec-
tives assigned to Prince’s case could not give the case their
undivided attention.
This changed in 2008, when the Omaha Police department
created the “Cold Case Unit.” The purpose of this unit was to
solve older cases that, for whatever reason, had gone unsolved.
det. Michael T. Kozelichki, who had originally worked on the
Prince case, was assigned to the unit, and chose to work the
Prince case. Kozelichki reinterviewed witnesses, interviewed
many new witnesses, and evaluated evidence of the crime.
Following this investigation, on June 23, 2009, the police
arrested bauldwin.
When the police arrested bauldwin, he asked to speak to
the detective working the case. Upon hearing of this request,
Kozelichki brought bauldwin to the police station to inter-
rogate him. Police videotaped the interrogation, which lasted
about 5 hours. The first 31⁄2 to 4 hours of this interrogation
STATE v. bAULdWIN 	685
Cite as 283 Neb. 678

were led by bauldwin; bauldwin simply told his side of the
story, with few questions from Kozelichki. Then bauldwin
ended the interview, and Kozelichki left the room. About 4
minutes later, Kozelichki reentered the room and began con-
fronting bauldwin with pieces of the State’s evidence and
challenging bauldwin’s version of events. bauldwin never
admitted to killing Prince, but did make several incriminat-
ing statements.
before trial, bauldwin moved to suppress this interroga-
tion, along with the audio recording from 2006, asserting that
the police had violated his Miranda rights in both instances.
Specifically, bauldwin claimed that the 2009 interrogation was
inadmissible because he had invoked his right to remain silent,
which the police failed to honor. And bauldwin claimed that
the 2006 audio recording was also inadmissible because he had
invoked his right to counsel, which the police similarly failed
to honor. The district court denied bauldwin’s motion, and at
trial, both the audio recording and the videotape were played
to the jury.
bauldwin also moved to exclude the testimony of the State’s
dNA experts, asserting that their testimony failed to meet the
requirements of Daubert v. Merrell Dow Pharmaceuticals,
Inc.,1 adopted by this court in Schafersman v. Agland Coop.2
This motion challenged the reliability of the methodology
employed by the State to identify bauldwin’s dNA on certain
pieces of evidence. The court denied this motion and received
the relevant evidence at trial. Most notably, dNA analysis did
not exclude bauldwin as a contributor to apparent bloodstains
on the shirt worn by Prince at the time of her death. And a
pair of bauldwin’s jeans, found at Prince’s house, had appar-
ent blood on them, from which Prince was not excluded as a
contributor. The jury found bauldwin guilty of second degree
murder. The court sentenced bauldwin to a term of life to life
in prison.
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
2 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
686 	283 NEbRASKA REPORTS

II. ASSIGNMENTS OF ERROR
bauldwin assigns, restated, that the district court erred in
(1) denying bauldwin’s motion to exclude his statements to
law enforcement;
(2) denying bauldwin’s motion in limine regarding the reli-
ability of the State’s dNA evidence and allowing evidence on
that subject to be introduced at trial;
(3) admitting exhibit 154, a photograph which depicted
Prince’s tongue, throat, and larynx, because it was not relevant
and was unfairly prejudicial;
(4) accepting the jury’s guilty verdict, because the evidence
adduced at trial was insufficient to support the verdict; and
(5) imposing an excessive sentence.
III. ANALYSIS
1. bauldwin’s 2009 statement
On June 23, 2009, police arrested and interrogated bauldwin
and videotaped the interrogation. This videotape was played in
full to the jury. bauldwin claims that the district court erred in
failing to suppress this statement because the police, in obtain-
ing it, violated his Miranda rights.
(a) Standard of Review
[1] In reviewing a motion to suppress a statement based on its
claimed involuntariness, including claims that law enforcement
procured it by violating the safeguards established by the U.S.
Supreme Court in Miranda v. Arizona,3 we apply a two-part
standard of review. Regarding historical facts, we review the
trial court’s findings for clear error. Whether those facts meet
constitutional standards, however, is a question of law, which
we review independently of the trial court’s determination.4
(b) Analysis
[2,3] When a person is in custody and interrogated by
government officials, Miranda requires a now-familiar set
3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
4 See State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).
STATE v. bAULdWIN 	687
Cite as 283 Neb. 678

of warnings: The police must notify a person that he has the
right to remain silent, that any statement he makes may be
used as evidence against him, and that he has a right to an
attorney, either retained or appointed.5 These warnings exist
to shield individuals from the inherently compelling pressures
of custodial interrogation.6 They also ensure that the Fifth
Amendment privilege against compelled self-incrimination
is protected.7
Regarding bauldwin’s 2009 statement, there is no ques-
tion that the police subjected bauldwin to custodial interroga-
tion and that Miranda applies. And there is no dispute that at
the start of the interrogation, Kozelichki read bauldwin his
Miranda rights and that bauldwin executed a valid waiver.
Instead, the issue is whether—following the waiver—bauldwin
clearly invoked his right to remain silent and, if so, whether the
police scrupulously honored that right.
(i) Clear Invocation of
Right to Remain Silent
[4,5] Whether a suspect clearly invoked his right to remain
silent is not a novel issue. We have addressed it before, in vari-
ous iterations, and the relevant principles remain unchanged.
We have explained that a suspect has the right to “‘control
the time at which questioning occurs, the subjects discussed,
and the duration of the interrogation.’”8 In other words, a
suspect has the right to cut off questioning at any time.9 Even
so, police officers are not required to guess whether a suspect
wishes to end the interrogation; instead, the police must cease
questioning the suspect only if “the suspect’s invocation of
the right to remain silent [is] ‘unambiguous,’ ‘unequivocal,’
or ‘clear.’”10
5 See Miranda, supra note 3.
6 See State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
7 See id.
8 Id. at 64, 760 N.W.2d at 58, quoting Michigan v. Mosley, 423 U.S. 96, 96
S. Ct. 321, 46 L. Ed. 2d 313 (1975).
9 See Mosley, supra note 8.
10 Rogers, supra note 6, 277 Neb. at 64, 760 N.W.2d at 58.
688 	283 NEbRASKA REPORTS

[6] In making that determination, we review the total-
ity of the circumstances of the alleged invocation to assess
the words in context.11 For example, we examine the actual
questions which drew the statement from the defendant and
the officer’s response to that statement.12 And because in this
case the facts of the alleged invocation are recorded in the
videotape and are not in dispute, this issue presents solely a
question of law.13
bauldwin claims that he invoked his Miranda rights mul-
tiple times during the interrogation. We disagree. Most of the
instances cited by bauldwin do not show unequivocal invo-
cations of a Miranda right, but are, at best, ambiguous. For
example, at one point bauldwin stated, “I mean, I could flood
you with possibilities that I . . . I’m a . . . uh, have to tell my
lawyer, but I can flood you with these things.” At another point,
bauldwin said, “I shouldn’t be in these shackles if I’da talked
to you, uh, six, eight . . . months ago. So, we’re gonna have to
end this interview to save . . . save me.” but after Kozelichki
said, “Okay,” bauldwin immediately continued speaking at
length. And at yet another point, bauldwin explained that he
was leaving out certain parts of the story because they were
“for [his] lawyer’s ear.” Nevertheless, bauldwin continued talk-
ing. These statements were not clear invocations of a Miranda
right, and so Kozelichki was not required to cease questioning
bauldwin based on those statements.14
but about 4 hours into the interview, the following back-
and-forth conversation took place:
[Kozelichki]: . . . I’d like to talk to you about that Friday
a little bit, going into Saturday, if you’d be willing.
[bauldwin]: [SIGHS] . . . man . . . [whisper]
Q: And I’ll give you my take on that.
A: I know what your take is [Kozelichki].
11 See Schroeder, supra note 4.
12 See Rogers, supra note 6.
13 See Schroeder, supra note 4.
14 See, e.g., State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004), abro-
gated on other grounds, Rogers, supra note 6.
STATE v. bAULdWIN 	689
Cite as 283 Neb. 678

Q: You don’t know anything about my take on that, so.
A: Your take is . . . well, . . . well it . . . it’s the . . . ah
. . . as my grandmother used to say, bless her soul, sh . . .
she’s passed, “Proof is in the pudding.”
Q: Uh hmm. [Affirmative]
A: And no matter how you spin it, that’s your job to
. . . to . . . to . . . to spin things, but I’ve given you what
I’m gonna give you.
Q: ’Kay.
At that point, Kozelichki got up to leave the room and bauldwin
said, “No matter how you spin it . . . but it’s kinda warm in
here, can you at least try to get me outta here as quick as
possible?” Kozelichki then left the room and closed the door.
About 4 minutes later, Kozelichki reentered the room, and the
following conversation took place:
[Kozelichki]: [bauldwin], we’re gonna go here in a sec-
ond. do you have anything more you want to talk about?
[bauldwin]: No. I think, um . . .
Q: . . . I gotta get my . . .
A: . . . so you about to leave me here for a while?
Q: No. No. Just want to know if there’s anything more
you want to talk about, is there any questions that you
have or if there’s anything that you want me to tell you?
A: Well, you not gonna tell me what I wanna hear.
Q: ’Kay. It . . . ta’, uh . . . uh . . .
[OFFICER SHUTS dOOR]
Q: See, when you . . . when you . . . when you make a
statement like that, I’m just gonna ask what do you want
to hear.
The interrogation then continued for about another hour, dur-
ing which Kozelichki confronted bauldwin with discrepancies
in his story and with portions of the State’s evidence against
him. Following this exchange, the incriminating portions of the
interrogation occurred.
Recently, in State v. Rogers,15 we explained that although
a 	determination 	of 	whether 	an 	invocation 	was 	clear 	and
15 Rogers, supra note 6.
690 	283 NEbRASKA REPORTS

unequivocal is dependent on the circumstances of each particu-
lar case, patterns have emerged from the case law that provide
context to our application of these rules.16 None of these pat-
terns are seen here. bauldwin’s statement that “I’ve given you
what I’m gonna give you” was not prefaced with “words of
equivocation such as ‘I think,’ ‘maybe,’ or ‘I believe.’”17 Nor
can bauldwin’s statement reasonably be interpreted to show
only that he had finished his colloquy of events18; instead,
bauldwin’s statement was made in response to Kozelichki’s
offer to give his take on what happened that weekend. When
viewed in context, bauldwin’s statement showed a desire to
stop the interrogation altogether. And bauldwin’s refusal to
talk was not limited to a specific topic, qualified by temporal
words, or immediately followed by a statement that was incon-
sistent with a desire to remain silent.19
Moreover, Kozelichki’s response to bauldwin also provides
context to the meaning of his statement. When bauldwin
stated, “I’ve given you what I’m gonna give you,” Kozelichki
left the room. bauldwin’s tone and demeanor indicated that
he had ended the interrogation. And Kozelichki’s reaction to
bauldwin’s statement showed that he understood that to be
bauldwin’s intent. Kozelichki replied, “’Kay,” got up, left
the room, and did not return until 4 minutes later. Thus, the
videotape shows that not only should Kozelichki have reason-
ably understood that bauldwin had invoked his right to remain
silent, but that he actually understood that to be the case.
Furthermore, once Kozelichki got up from his chair, bauldwin
asked, “[b]ut it’s kinda warm in here, can you at least try
to get me outta here as quick as possible?” This statement
signaled that both Kozelichki and bauldwin understood that
bauldwin had ended the questioning by clearly invoking his
right to remain silent.
16 Id.
17 See id. at 65, 760 N.W.2d at 58.
18 See Rogers, supra note 6.
19 See id.
STATE v. bAULdWIN 	691
Cite as 283 Neb. 678

(ii) Scrupulously Honored
[7] While bauldwin clearly invoked his right to remain
silent, 	that 	determination 	does 	not 	end 	our 	inquiry. The
remaining issue is whether the police “‘scrupulously hon-
ored’” bauldwin’s right to remain silent.20 In Miranda v.
Arizona,21 the U.S. Supreme Court set out the following rule:
“Once warnings have been given, the subsequent procedure
is clear. If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent,
the interrogation must cease.”22 In Michigan v. Mosley,23 how-
ever, the Court explained that the phrase “interrogation must
cease” does not mean that no further interrogation may ever
be commenced. This would be an unreasonable burden on
legitimate police investigation. but neither does it allow for
only a “momentary cessation” of the interrogation.24 Such an
interpretation would render the right to remain silent meaning-
less because the police could simply continue questioning a
suspect immediately after the right was invoked. Instead, the
Court understood Miranda to mean that once a person has
invoked his right to remain silent, the police must scrupulously
honor that right.25
Obviously, this is a fact-specific inquiry. In Mosley, the
Court held that the police had scrupulously honored the defend-
ant’s right to remain silent. In making this determination, the
Court emphasized that once the defendant invoked his right to
remain silent, the officer “immediately ceased the interroga-
tion and did not try either to resume the questioning or in any
way to persuade [the defendant] to reconsider his position.”26
Furthermore, more than 2 hours elapsed between the two
20 See Mosley, supra note 8, 423 U.S. at 103, quoting Miranda, supra
note 3.
21 Miranda, supra note 3.
22 Id., 384 U.S. at 473-74.
23 Mosley, supra note 8.
24 Id., 423 U.S. at 102.
25 See id.
26 Id., 423 U.S. at 104.
692 	283 NEbRASKA REPORTS

interrogations, and a different officer conducted the second
interrogation, regarding an unrelated crime. Finally, the sec-
ond interrogation began with another recitation of Miranda
rights. Under those circumstances, the Court concluded that
the police had scrupulously honored the defendant’s right to
remain silent.27
The Mosley decision does not offer a simple, bright-line rule.
And while the overarching holding of Mosley—law enforce-
ment must scrupulously honor a suspect’s invocation of his
right to remain silent—is easy to state, it is not always easy
to apply. This is demonstrated by the variety of approaches
taken by lower courts that have applied Mosley.28 Some courts
read Mosley to require a totality-of-the-circumstances analy-
sis, where the factors listed in Mosley are neither exclusive
nor exhaustive.29 Some courts emphasize whether the suspect
received Miranda warnings again before the onset of the
second interrogation.30 Others emphasize the length of time
between the interrogations.31 And still others follow Mosley
relatively strictly, looking toward only the three (or four) fac-
tors which the Mosley court deemed important.32
[8] We have applied Mosley’s principles in several cases.33
And in State v. Pettit,34 we concluded that Mosley required a
27 See Mosley, supra note 8.
28 See Quinten bowman, Issues in the Third Circuit: Constitutional Law—
When Coerced Statements Lead to More Evidence: The “Poisonous Tree”
Blooms Again in the Fifth Amendment, 44 Vill. L. Rev. 843 (1999). See,
e.g., Fleming v. Metrish, 556 F.3d 520 (6th Cir. 2009); U.S. v. Schwensow,
151 F.3d 650 (7th Cir. 1998); U.S. v. Cody, 114 F.3d 772 (8th Cir. 1997);
West v. Johnson, 92 F.3d 1385 (5th Cir. 1996); U.S. v. Hsu, 852 F.2d 407
(9th Cir. 1988); United States v. Finch, 557 F.2d 1234 (8th Cir. 1977).
29 See, e.g., Schwensow, supra note 28.
30 See, e.g., Hsu, supra note 28.
31 See, e.g., West, supra note 28.
32 See, e.g., Cody, supra note 28; Finch, supra note 28.
33 See, Rogers, supra note 6; State v. Lee, 227 Neb. 277, 417 N.W.2d 26
(1987); State v. Pettit, 227 Neb. 218, 417 N.W.2d 3 (1987); State v.
Bridgeman, 212 Neb. 469, 323 N.W.2d 102 (1982); In re Interest of
Durand. State v. Durand, 206 Neb. 415, 293 N.W.2d 383 (1980).
34 Pettit, supra note 33.
STATE v. bAULdWIN 	693
Cite as 283 Neb. 678

three-factor analysis in determining whether the police scru-
pulously honored the right to remain silent. Those factors
were (1) whether the police immediately ceased the interroga-
tion once the defendant invoked his right to remain silent; (2)
whether the police resumed the interrogation after a significant
time and a renewal of the Miranda warnings; and (3) whether
the police restricted the renewed interrogation to content not
covered by the first interrogation.35 Absent a contrary indica-
tion from the U.S. Supreme Court, we see no reason to change
our approach.
Analyzing those factors here compels us to conclude that the
police did not scrupulously honor bauldwin’s right to remain
silent. While the police did immediately cease the interrogation
once bauldwin invoked his right to remain silent, the rest of
the factors weigh against the police’s action. Kozelichki, after
leaving the room, waited only 4 minutes before reentering and
continuing his interrogation. Kozelichki did not provide a fresh
set of Miranda warnings to bauldwin before continuing the
interrogation. And the subsequent interrogation dealt with the
same general subject matter as the first; namely, bauldwin’s
alleged involvement in Prince’s death.
In particular, we emphasize that the 4 minutes that passed
between bauldwin’s invocation of his right to remain silent
and Kozelichki’s continued questioning was an extraordinarily
short interval. This is in stark contrast to the 2-hour inter-
val that was deemed acceptable in Mosley. Courts that have
been confronted with a comparable short interval have gener-
ally found that it weighed heavily against determining law
enforcement officers scrupulously honored a suspect’s Fifth
Amendment right.
For example, in Charles v. Smith,36 the police attempted to
interrogate a suspect about a crime “just a few minutes” after
the suspect had previously invoked his right to remain silent.
The same officer conducted the second interrogation, regarding
35 See, Lee, supra note 33; Pettit, supra note 33. See, also, Cody, supra note
28; Finch, supra note 28.
36 Charles v. Smith, 894 F.2d 718, 726 (5th Cir. 1990).
694 	283 NEbRASKA REPORTS

the same crime. The Fifth Circuit concluded that the officer
had not scrupulously honored the suspect’s right to remain
silent.37 Similarly, in United States v. Sippola,38 the federal
district court determined that law enforcement had not scrupu-
lously honored the suspect’s right to remain silent when only 5
minutes had passed. This was true even though a different law
enforcement officer conducted the second interrogation and
provided another set of Miranda warnings.39 And in Shaffer v.
Clusen,40 the federal district court determined that the police
had failed to scrupulously honor a suspect’s rights when only
9 minutes had passed before the suspect was interrogated again
regarding the same subject following the provision of another
set of Miranda warnings.
Cases in which courts have found no Mosley violation after
a comparable short interval are rare and distinguishable from
this case.41 For example, in Mills v. Com.,42 the court described
the interval as “not more than ten or twenty minutes.” And
while that short of an interval gave the court “some concern,”
the court determined, when the circumstances were taken as a
whole, that the police had scrupulously honored the suspect’s
right to remain silent.43 Importantly, however, an officer again
gave the Miranda warnings to the suspect before starting the
subsequent interrogation, and the interrogation was conducted
by a different officer.44 That is not the case here.
[9] We do not ignore that the videotape presents an indi-
vidual, bauldwin, who was intelligent and, for a significant
37 Id.
38 United States v. Sippola, No. 2:10-cr-21, 2010 U.S. dist. LEXIS 67866
(W.d. Mich. July 7, 2010).
39 Id.
40 Shaffer v. Clusen, 518 F. Supp. 963 (E.d. Wis. 1981).
41 See, e.g., State v. Roquette, 290 N.W.2d 260 (N.d. 1980); State v. Shaffer,
96 Wis. 2d 531, 292 N.W.2d 370 (Wis. App. 1980).
42 Mills v. Com., 996 S.W.2d 473, 483 (Ky. 1999), overruled on other
grounds, Padgett v. Com., 312 S.W.3d 336 (Ky. 2010).
43 Id.
44 Id.
STATE v. bAULdWIN 	695
Cite as 283 Neb. 678

portion of the videotape, controlled the flow of the interroga-
tion. And it is true that bauldwin could have simply continued
to remain silent when faced with Kozelichki’s questions. but
the Mosley test focuses on what law enforcement did, and
when, and not on the suspect’s response or lack thereof.45 And
this makes sense. Similar to Miranda, Mosley imposes obli-
gations on the police, not the suspect, to protect individuals
against the inherently coercive nature of custodial interroga-
tion.46 And in this case, the detective’s conduct did not comport
with the law.
We also understand that Kozelichki’s question—“do you
have anything more you want to talk about?”—may appear
innocuous. but our review of the record convinces us that
Kozelichki asked that question in the hope that bauldwin
would continue speaking to his detriment. While such ques-
tions are not overtly coercive, they undermine the Miranda
warnings, which inform a suspect both that he has the right to
remain silent and, implicitly, that law enforcement will honor
his choice to invoke it. The U.S. Supreme Court has cautioned
that “‘illegitimate and unconstitutional practices get their first
footing . . . by silent approaches and slight deviations from
legal modes of procedure.’”47 Such a deviation occurred here.
bauldwin clearly invoked his right to remain silent, and the
police failed to scrupulously honor that right.
(iii) Harmless Error
[10,11] The trial court’s failure to suppress bauldwin’s 2009
statement was constitutional error. but even constitutional error
does not automatically require reversal of a conviction if that
error was a “‘trial error’” and not a “structural defect.”48 The
admission of an improperly obtained statement is a trial error,
and so its erroneous admission is subject to harmless error
45 See U.S. v. Barone, 968 F.2d 1378 (1st Cir. 1992).
46 See id.
47 Miranda, supra note 3, 384 U.S. at 459, quoting Boyd v. United States,
116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886).
48 Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d
302 (1991). Accord Rogers, supra note 6.
696 	283 NEbRASKA REPORTS

analysis.49 Here, after considering the entire record, we con-
clude that this error was harmless.
[12] Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty ver-
dict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error.50
The inherent difficulties in harmless error analysis are
really twofold. First, the appellate court must make its deter-
mination from a “cold” record—the court does not have the
opportunity to view the evidence and hear the testimony in
the same way that the jury did.51 Second, making a harmless
error determination necessarily involves some speculation—an
appellate court cannot know for certain whether the jury did or
did not rely on certain pieces of evidence.52 despite these dif-
ficulties, it is the court’s duty to review the whole record and
determine whether the jury’s verdict was surely unattributable
to the error.53
We conclude that the jury’s verdict was surely unattribut-
able to the erroneous admission of bauldwin’s statements. We
first emphasize the limited incriminating nature of bauldwin’s
statement. The first 31⁄2 to 4 hours of the interrogation consisted
simply of bauldwin’s telling his side of the story. It was not
until Kozelichki confronted bauldwin with pieces of the State’s
evidence that the interrogation became incriminating, and even
then, only a few of bauldwin’s statements were incriminating.
This was not a full, “smoking gun” confession. but bauldwin
49 See, Fulminante, supra note 48; Milton v. Wainwright, 407 U.S. 371, 92 S.
Ct. 2174, 33 L. Ed. 2d 1 (1972).
50 Rogers, supra note 6; State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542
(2007), abrogated in part on other grounds, State v. Thorpe, 280 Neb. 11,
783 N.W.2d 749 (2010); State v. Canady, 263 Neb. 552, 641 N.W.2d 43
(2002).
51 See Harry T. Edwards, To Err Is Human, But Not Always Harmless: When
Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1169 (1995).
52 See id.
53 See, e.g., State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011).
STATE v. bAULdWIN 	697
Cite as 283 Neb. 678

did change his story about the nature of his and Prince’s rela-
tionship—he admitted that he and Prince had “fought a thou-
sand times.” And when confronted with pieces of the State’s
evidence, bauldwin was unable to offer satisfactory explana-
tions. Finally, when Kozelichki told bauldwin that they had
found bauldwin’s jeans at Prince’s house soon after she was
killed, bauldwin replied “They couldn’ta been. If that was the
case, I’da been in jail.”
It is true these statements were incriminating. but other evi-
dence at trial showed that bauldwin’s relationship with Prince
was rocky. Testimony showed that bauldwin and Prince had
repeatedly broken up, and their relationship was described as
“on again, off again” at several points. And when the other
incriminating statements in the interrogation are considered
in the context of the overwhelming guilt, it is clear that the
jury’s verdict was surely unattributable to the court’s erroneous
admission of bauldwin’s statement.
The State presented strong evidence of bauldwin’s motive
and opportunity for the murder. Prince was found strangled
in the basement of her home. There was no sign of forced
entry, showing that the person who killed Prince had access
to her home. bauldwin lived with Prince. bauldwin’s where-
abouts were unknown during a critical 3- to 4-hour period on
Saturday night into Sunday morning, which fit the timeframe
for Prince’s death.
The 	evidence 	also 	showed 	that 	bauldwin 	was 	overly
possessive of Prince. For example, the record showed that
bauldwin made 19 telephone calls in 1 hour to Prince’s cellu-
lar telephone that Saturday morning. And when Scott, Prince’s
friend, escorted Prince home after a house party, bauldwin
was aggressive and territorial. Further, the evidence showed
that Prince was seeing other men while in a relationship
with bauldwin.
The physical evidence also supported bauldwin’s guilt.
The police photographed bauldwin that Sunday evening, and
those photographs show that bauldwin had numerous injuries
on his body. bauldwin’s explanation for those injuries—that
they resulted from fixing the garage door—was inconsistent
with his neighbor’s testimony, who explained that fixing the
698 	283 NEbRASKA REPORTS

door took less than a minute and that he saw no injuries to
bauldwin while helping him do so. A pathologist testified that
the numerous injuries on Prince’s body were possibly defensive
in nature.
Finally, the dNA evidence provided crushing evidence of
guilt. bauldwin was not excluded as a contributor to apparent
bloodstains on the shirt worn by Prince at the time of her death.
And even more condemning, a pair of bauldwin’s jeans, found
at Prince’s house, had apparent blood on them, from which
Prince was not excluded as a contributor. The odds of someone
other than bauldwin or Prince contributing to these respective
dNA samples were infinitesimal.
We again emphasize that the erroneously admitted statement
was not a confession. Portions of the statement are incriminat-
ing, but when viewed relative to the properly admitted, over-
whelming evidence of bauldwin’s guilt, there is no reasonable
probability that the jury’s verdict was attributable to the court’s
erroneous admission of bauldwin’s statement. Its admission
was harmless error.
2. bauldwin’s 2006 statement to police
On February 26, 2006, the day Prince’s body was found,
bauldwin went to the police station, where the police inter-
viewed him. The police audio-recorded his statement that day.
bauldwin asserts that the court erred in admitting this state-
ment into evidence because bauldwin repeatedly invoked his
right to counsel, which the police failed to honor. The State
argues that Miranda protections did not apply, because at no
time was bauldwin subject to custodial interrogation. We agree
with the State. We review the court’s admission of the 2006
statement under the same two-part standard that we applied to
review the admission of the 2009 statement.
[13-15] Miranda protections apply only when a person
is both in custody and subject to interrogation.54 Whether
an individual is in custody requires an examination of all
the circumstances surrounding the interrogation.55 In making
54 See Rogers, supra note 6.
55 Id.
STATE v. bAULdWIN 	699
Cite as 283 Neb. 678

that determination, the test is whether a reasonable person
in the defendant’s situation would have felt free to leave,
and if not, then a defendant is considered to be in custody.56
Circumstances that are relevant to this inquiry include, for
example, the location of the interrogation, whether the indi-
vidual initiated contact with the police, and whether the police
told the defendant he was free to terminate the interview and
leave at any time.57 “Interrogation” under Miranda refers not
only to express questioning, “but also to any words or actions
on the part of the police . . . that the police should know are
reasonably likely to elicit an incriminating response from the
suspect.”58 If a person is in custody and subject to interroga-
tion, Miranda applies.
bauldwin was not initially in custody. The district court
made findings of fact—which, after our review of the record,
we conclude are not clearly erroneous. bauldwin went to the
police station of his own accord; he was not arrested or in any
way forced to come down to the station. Upon arriving there,
the police placed bauldwin in an interview room, but they did
not shackle, handcuff, or restrict his freedom of movement in
any way. The police told bauldwin that he was not under arrest
and that it was a matter of routine procedure for the police to
speak with a victim’s significant other. The police did not use
any strong-arm tactics or deceptive strategies during the inter-
view, and the atmosphere of the questioning was not police
dominated. These facts show that, initially, bauldwin was not
in custody during the 2006 statement.
but when the police explicitly told bauldwin that he could
not leave until they had obtained a buccal swab and photo-
graphed his body, the police had effectively taken bauldwin
into custody. Regardless of the circumstances that brought
bauldwin to the police station, the key inquiry is whether a rea-
sonable person would have felt free to leave. And, obviously,
if the police explicitly refuse to let the person go, a reasonable
person would not feel free to leave.
56 Id.
57 See id.
58 Id. at 54, 760 N.W.2d at 28-29.
700 	283 NEbRASKA REPORTS

Even so, Miranda applies only if the individual is subjected
to 	custodial 	interrogation. 	“Interrogation” 	refers 	to 	words
or actions of the police intended to elicit an incriminating
response from the suspect.59 Our review of the audio record-
ing indicates that once bauldwin was in custody, he was not
interrogated. The interaction between bauldwin and the police,
from that point, was limited to allowing bauldwin to contact an
attorney; obtaining a few pieces of basic, biographical informa-
tion; instructing bauldwin about the investigation process; and
taking photographs and a buccal swab. Following those proce-
dures, the police allowed bauldwin to leave and did not arrest
him. The police never subjected bauldwin to custodial inter-
rogation during his 2006 statement. So Miranda did not apply,
and the district court did not err in denying bauldwin’s motion
to suppress the 2006 statement.
3. challenge to dna evidence
before trial, bauldwin moved to preclude the State from
offering its dNA evidence. bauldwin claims that the State
failed to prove that its methodology for analyzing mixed dNA
samples was scientifically valid. Our review of the record,
however, shows that the scientific community has generally
accepted the methodology used in this case, it has been subject
to peer review and publication, and the methodology is reliable.
We conclude that the district court did not abuse its discretion
in admitting the State’s dNA evidence at trial.
(a) Standard of Review
[16] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.60
(b) Analysis
The dNA analysis in this case used a methodology known
as PCR-STR analysis. The forensic analysts used this meth-
odology to analyze the mixed dNA samples found on certain
pieces of evidence. A mixed dNA sample, as its name implies,
contains dNA from two or more contributors. The results of
59 See id.
60 State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
STATE v. bAULdWIN 	701
Cite as 283 Neb. 678

this analysis linked bauldwin to Prince’s murder. bauldwin
asserts that the dNA results could only mislead the jury, and
so the State’s expert testimony in that regard should have
been excluded.
[17] A trial judge acts as a gatekeeper for expert scientific
testimony, and must determine (1) whether the expert will
testify to scientific evidence and (2) if that testimony will be
helpful to the trier of fact.61 This entails a preliminary assess-
ment whether the reasoning or methodology underlying the
testimony is scientifically valid and whether that reasoning or
methodology may properly be applied to the facts in issue.62
[18] In evaluating the admissibility of expert scientific testi-
mony, a trial judge considers a number of factors. These factors
include whether a theory or technique can be (and has been)
tested; whether it has been subjected to peer review and pub-
lication; whether, in a particular technique, there exists a high
known or potential rate of error; whether standards exist for
controlling the technique’s operation; and whether the theory
or technique enjoys general acceptance within a relevant scien-
tific community. These factors are, however, neither exclusive
nor binding. different factors may prove more significant in
different cases, and additional factors may prove relevant under
particular circumstances.63
Here, the expert testimony at trial indicated that with a
mixed dNA sample, an analyst attempts to determine the
“major” and “minor” contributors to the sample. If the analyst
can determine the distinct dNA profiles for each contributor,
then the analyst compares each profile to that of the individual
in question. If an individual’s profile matches the profile of a
contributor to the dNA sample, then the analyst calculates the
probability that someone other than the individual could have
contributed dNA to the sample.
bauldwin argues that the probabilities which accompany
the dNA analysis serve only to mislead the jury. For example,
61 See Schafersman, supra note 2.
62 See id.
63 See State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009). See, also,
Daubert, supra note 1; Schafersman, supra note 2.
702 	283 NEbRASKA REPORTS

bauldwin claims that a jury would treat a probability of 1 in
500,000 the same as 1 in 1 septillion (1024). In essence, bauldwin
claims that a jury is unable to assign the appropriate weight to
dNA evidence, because the probabilities which accompany it
are oftentimes so small as to be indistinguishable.
[19] This is essentially a claim that a jury is not smart
enough to understand and give weight to the statistical analysis
that accompanies dNA evidence. bauldwin offers no authority
for this argument, and we reject it out of hand—juries are asked
to analyze complex topics and evidence in many cases, and that
is what the jury was asked to do here. Furthermore, dNA evi-
dence without the accompanying probability assessment would
be inadmissible because it would not aid the trier of fact.64 We
have specifically held that dNA evidence is inadmissible with-
out the probability assessment for that very reason.65 We are
not persuaded to reconsider that position today.
bauldwin also argues that because the PCR-STR analysis
cannot definitively determine the cell source of the dNA (e.g.,
whether the dNA came from blood, skin, hair, or semen), it
is impossible for an analyst to say that the dNA from both
contributors to a mixed sample came from blood. While a pre-
sumptive test exists to indicate the presence of blood, bauldwin
asserts that such a test “will mislead the jury into believing that
both contributors to the mixture contributed blood.”66 As such,
bauldwin claims that the court erroneously admitted the State’s
expert testimony into evidence.
Here, the court determined that the PCR-STR methodology
was scientifically valid and reliable. The court found that the
forensic analyst followed the proper protocols and that the
analyst properly applied the methodology to the dNA samples.
The court emphasized the State’s expert testimony, which out-
lined the protocols used, the scientific community’s stance on
the PCR-STR analysis, the certification of the laboratory, and
64 See, Daubert, supra note 1; Schafersman, supra note 2; State v. Carter,
246 Neb. 953, 524 N.W.2d 763 (1994), overruled on other grounds, State
v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).
65 See Carter, supra note 64.
66 brief for appellant at 38.
STATE v. bAULdWIN 	703
Cite as 283 Neb. 678

specific literature on analyzing mixed dNA samples. The court
found that the dNA evidence was admissible.
At issue here is the reliability of the PCR-STR methodol-
ogy as applied to mixed samples. The State’s expert witnesses
testified that the scientific community has generally accepted
the PCR-STR methodology as a means to identify contribu-
tors to mixed samples of dNA. The accreditation of each
individual laboratory rests, in part, on the analysts’ ability to
pass proficiency testing regarding mixed dNA samples. The
dNA laboratory was accredited. Testimony also showed that
scientific literature had been published about the PCR-STR
methodology regarding mixed samples. Furthermore, we have
repeatedly found that the PCR-STR analysis itself produces
sufficiently reliable information to be admitted at trial.67 The
Legislature has also recognized the reliability of the PCR-STR
methodology.68
The inability of PCR-STR analysis to definitely label the
cell source of each dNA contributor in a mixed sample does
not affect the underlying validity of the methodology, or its
admissibility under the Daubert/Schafersman69 framework. In
essence, bauldwin claims that the PCR-STR methodology is
not scientifically valid because it is not able to do more—it
cannot definitively identify the cell source for each contributor
to a mixed dNA sample. bauldwin’s assertions, however, go to
the weight of the evidence, rather than to its admissibility. We
cannot say the district court abused its discretion in admitting
this testimony.
4. exhibit 154’s admissibility
bauldwin argues that the court erred in admitting into evi-
dence exhibit 154—a photograph of Prince’s tongue, throat,
and larynx, excised during the autopsy. Specifically, bauldwin
claims that exhibit 154 was not relevant to any controverted
67 See, State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004); State v.
Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004); State v.
Jackson, 255 Neb. 68, 582 N.W.2d 317 (1998).
68 See Neb. Rev. Stat. § 29-4118(3) (Reissue 2008).
69 See, Daubert, supra note 1; Schafersman, supra note 2.
704 	283 NEbRASKA REPORTS

issue and that the danger of unfair prejudice outweighed any
probative value it might have had. but the court found that
the photograph demonstrated the nature and extent of Prince’s
injuries and that no other evidence demonstrated the internal
injuries that she sustained.
(a) Standard of Review
[20,21] In proceedings where the Nebraska Evidence Rules
apply, the rules control admissibility of the evidence; judi-
cial discretion is involved only when the rules make discre-
tion a factor in determining admissibility. When the Nebraska
Evidence Rules commit the evidentiary question at issue to
the discretion of the trial court, we review the admissibility of
evidence for an abuse of discretion.70 A trial court exercises
its discretion in determining whether evidence is relevant
and whether its probative value is outweighed by its prejudi-
cial effect.71
(b) Analysis
[22] bauldwin first argues that exhibit 154 was not relevant
to prove any element of the State’s case. but at trial, bauldwin
objected only because the danger of unfair prejudice out-
weighed any probative value. And on appeal, a defendant may
not assert a different ground for his objection to the admis-
sion of evidence than was offered at trial.72 Furthermore, not
only did bauldwin fail to object to exhibit 154 on relevancy
grounds, but he conceded that exhibit 154 was, in fact, rele-
vant. When bauldwin’s attorney objected at trial, he explained,
“Certainly 154 would be relevant to the judge — or to [the
pathologist’s] testimony and demonstrating his opinions, how-
ever, I feel that 154 is prejudicial, its prejudicial facts would
outweigh its probative value . . . .” We therefore do not con-
sider bauldwin’s relevance objection and instead focus on his
claim that exhibit 154’s danger of unfair prejudice outweighed
its probative value.
70 See State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
71 See Jackson, supra note 67.
72 See State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003).
STATE v. bAULdWIN 	705
Cite as 283 Neb. 678

[23] Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2008), relevant evidence “may be excluded if its pro-
bative value is substantially outweighed by the danger of unfair
prejudice.” bauldwin asserts that exhibit 154 lacked probative
value because it only depicted injuries to Prince’s neck region
and there was no dispute that the cause of death was stran-
gulation. And bauldwin claims that the gruesome nature of
the photograph would be “so emotionally overwhelming as to
override the jury’s objectivity.”73
[24,25] The admission of photographs of a gruesome nature
rests largely with the discretion of the trial court, which must
determine their relevancy and weigh their probative value
against their prejudicial effect.74 In a homicide prosecution, a
court may receive photographs of a victim into evidence for
the purpose of identification, to show the condition of the body
or the nature and extent of wounds and injuries to it, and to
establish malice or intent.75
Although bauldwin may not have actively disputed the
cause of Prince’s death, the State must still prove all of the
elements of the crime beyond a reasonable doubt. The State
charged bauldwin with first degree murder, which required
showing that the killing was done “purposely and with deliber-
ate and premeditated malice.”76 How Prince died was certainly
relevant as to whether bauldwin intended to kill her. Thus,
because exhibit 154 provided foundation for the pathologist’s
cause-of-death determination, exhibit 154 had substantial pro-
bative value. Furthermore, the State also offered exhibit 154
to demonstrate the nature and extent of Prince’s injuries. And,
although many photographs showed Prince’s external injuries,
this was the only photograph offered that depicted Prince’s
internal injuries. We cannot say that the trial court abused its
discretion in admitting exhibit 154 into evidence.
73 brief for appellant at 40.
74 State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009), cert. denied 559
U.S. 1010, 130 S. Ct. 1887, 176 L. Ed. 2d 372 (2010).
75 See, e.g., id.
76 See Neb. Rev. Stat. § 28-303(1) (Reissue 2008).
706 	283 NEbRASKA REPORTS

5. sufficiency of the evidence
bauldwin asserts that there was insufficient evidence to
support his conviction. Specifically, bauldwin claims that the
evidence revealed a “shoddy” police investigation,77 that police
never definitely ruled out or investigated numerous other sus-
pects, and that the dNA evidence was unconvincing.
(a) Standard of Review
[26] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.78 And in our review, we do not
resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence. Those matters are for the
finder of fact.79
(b) Analysis
A jury convicted bauldwin of second degree murder. A per-
son commits second degree murder “if he causes the death of a
person intentionally, but without premeditation.”80 bauldwin is
asking us to reweigh the evidence. This we will not do. Having
already concluded that the record contains overwhelming evi-
dence of bauldwin’s guilt, we will not repeat that evidence
here. Our only inquiry is whether sufficient evidence exists to
allow a rational trier of fact to find the essential elements of
the crime to exist beyond a reasonable doubt. As previously
discussed, there is.
A rational jury could find that bauldwin killed Prince. And
because the cause of death was strangulation, a jury could
conclude that bauldwin intentionally killed Prince without pre-
meditation. This assignment of error has no merit.
77 brief for appellant at 40.
78 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
79 See id.
80 Neb. Rev. Stat. § 28-304 (Reissue 2008).
STATE v. bAULdWIN 	707
Cite as 283 Neb. 678

6. challenge to sentence as excessive
bauldwin contends that the district court imposed an exces-
sive sentence, because the court did not seriously consider all
of the mitigating factors weighing in favor of a lesser sentence.
Of course, the State views it differently. The State asserts that
the district court properly considered all appropriate factors
in imposing bauldwin’s sentence and, based on the violent
nature of the crime, did not abuse its discretion in imposing a
life sentence.
(a) Standard of Review
[27] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.81
(b) Analysis
[28] The sentencing judge sentenced bauldwin to a term of
life to life in prison. Although this is the maximum sentence a
court may impose for second degree murder, it falls within the
statutory sentencing limits for second degree murder.82 As such,
we review the district court’s decision for an abuse of discre-
tion.83 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.84
[29,30] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense, and (8) the amount of violence involved in the com-
mission of the crime.85 In imposing a sentence, the sentencing
81 State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).
82 See, State v. Moore, 277 Neb. 111, 759 N.W.2d 698 (2009); Davis, supra
note 81; State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).
83 See Davis, supra note 81.
84 Id.
85 State v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008).
708 	283 NEbRASKA REPORTS

court is not limited to any mathematically applied set of fac-
tors.86 The appropriateness of a sentence is necessarily a sub-
jective judgment and includes the sentencing judge’s observa-
tion of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life.87
bauldwin claims that the district court did not seriously con-
sider all of the circumstances surrounding his life. bauldwin’s
brief details personal aspects of his life, as had been previously
set forth in a letter submitted to the court. While bauldwin
asserts that this letter was made a part of the presentence
report, we are unable to find it in our review of the record.
Regardless, we conclude that the district court did not abuse its
discretion in imposing the sentence in this case.
The record indicates that the court reviewed letters from
members of both bauldwin’s family and Prince’s family, writ-
ten presentations from both sides’ attorneys, and the evidence
in the case before coming to its decision. And, based on the
assertions made in bauldwin’s brief, all of the mitigating fac-
tors that weigh in favor of a lesser sentence were conveyed to
the district court.
but the record also reveals that the trial court emphasized
the violent nature of bauldwin’s crime:
To cause a death by strangulation is different than a
shot from a gun or a — or a stabbing. Those intentions
are — or the act supporting those intentions to kill are
nearly instantaneous, but a strangulation, . . . bauldwin,
as you know in this case, has to be prolonged. It has to
be a use of extreme force and violence. The duration is a
minute, the doctor testified, before someone would even
pass out, and longer than that to cause their [sic] death.
Those minutes where your hands had to be around her
neck or the use of an instrument for the same purpose, she
had to be deprived of breath for over that period of time,
this person that you state that you loved and cared about,
and as you caused to pass out and die and left in the base-
ment in those early morning hours.
86 Id.
87 Id.
STATE v. bAULdWIN 	709
Cite as 283 Neb. 678

The trial court’s obvious focus on the viciousness of this attack
is understandable, as is the sentence the court imposed. We
cannot say that the trial court abused its discretion.
IV. CONCLUSION
during bauldwin’s 2009 statement, he clearly invoked his
right to remain silent, which the police failed to scrupulously
honor. The trial court’s admission of bauldwin’s 2009 state-
ment was error, but it was harmless. We find no merit to
bauldwin’s other assigned errors, and so we affirm his convic-
tion and sentence.
affiRmed.
wRight, J., not participating.
state of nebRaska , appellee , v.
bRandon d. R einhaRt, appellant.
811 N.W.2d 258
Filed April 20, 2012. 	No. S-11-464.
1. Convictions: Evidence: Appeal and Error. When reviewing a criminal convic-
tion for sufficiency of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
3. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
4. Effectiveness of Counsel: Appeal and Error. Whether counsel was deficient and
whether the defendant was prejudiced are questions of law that an appellate court
reviews independently of the lower court’s decision.
5. Constitutional Law: Appeal and Error. A constitutional issue not presented to
or passed upon by the trial court is not appropriate for consideration on appeal.
6. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
7. Hearsay. A statement is not hearsay if it is offered against a party and is his own
statement, in either his individual or a representative capacity.
710 	283 NEbRASKA REPORTS