State v. Phillips

Nebraska Advance Sheets
974 286 NEBRASKA REPORTS

State of Nebraska, appellee, v.
Tyrese A. Phillips, appellant.
___ N.W.2d ___

Filed December 6, 2013. No. S-12-711.

 1. Constitutional Law: Self-Incrimination: Appeal and Error. A court’s deci-
sion to allow a witness to invoke his or her Fifth Amendment right against self-
incrimination is reviewed for an abuse of discretion.
 2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make such discretion a factor in deter-
mining admissibility.
 3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
 4. 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 whether the court admitted evidence over a hear-
say objection or excluded evidence on hearsay grounds.
 5. ____: ____: ____. Because of the factors a trial court must weigh in deciding
whether to admit evidence under the residual hearsay exception, an appellate
court applies an abuse of discretion standard to hearsay rulings under the residual
hearsay exception.
 6. Constitutional Law: Due Process. The determination of whether procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
 7. Judgments: Appeal and Error. On questions of law, a reviewing court has an
obligation to reach its own conclusions independent of those reached by the
lower courts.
 8. Motions for Mistrial: Appeal and Error. Whether to grant a motion for mistrial
is within the trial court’s discretion, and an appellate court will not be disturb its
ruling unless the court abused its discretion.
 9. Motions for New Trial: Prosecuting Attorneys: Appeal and Error. An appel-
late court reviews a motion for new trial on the basis of prosecutorial misconduct
for an abuse of discretion of the trial court.
10. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial
depends largely on the facts of each case.
11. Constitutional Law: Self-Incrimination. The provision in the Fifth Amendment
to the U.S. Constitution that no person shall be compelled to give evidence
against himself or herself of an incriminating nature must be accorded liberal
construction in favor of the right it was intended to secure.
12. ____: ____. The Fifth Amendment privilege not only permits a person to refuse
to testify against himself or herself during a criminal trial in which he or she
is a defendant, but also grants him or her the privilege to refuse to answer
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STATE v. PHILLIPS 975
Cite as 286 Neb. 974

questions put to him or her in any other proceeding, civil or criminal, formal or
informal, where the answers might tend to incriminate him or her in future crimi-
nal proceedings.
13. Constitutional Law: Witnesses: Self-Incrimination. While a witness may
invoke the Fifth Amendment to avoid answering questions, the witness’ asser-
tion of the privilege does not by itself establish the risk of incrimination; instead,
the court must make inquiry to determine itself whether answering the questions
would raise Fifth Amendment concerns.
14. ____: ____: ____. The privilege against compulsory self-incrimination afforded
by the Fifth Amendment not only extends to answers that would in themselves
support a conviction but likewise embraces those which would furnish a link in
the chain of evidence needed to prosecute the claimant. It need only be evident
from the implications of the question, in the setting in which it is asked, that a
responsive answer to the question or an explanation of why it cannot be answered
might be dangerous because injurious disclosure could result.
15. Immunity: Witnesses: Prosecuting Attorneys. Absent a motion by the county
attorney or other prosecuting attorney, a trial court lacks authority to grant immu-
nity and order a witness to testify.
16. Confessions: Rules of Evidence: Words and Phrases. A “statement” within
the meaning of Neb. Rev. Stat. § 27-804(2)(c) (Reissue 2008) is a specific
individual statement that a proponent offers into evidence rather than the entire
narrative of which the statement is a part; § 27-804(2)(c) uses the term “state-
ment” in a narrow sense to refer to a specific declaration or remark incriminating
the speaker and not more broadly to refer to the entire narrative portion of the
speaker’s confession.
17. Rules of Evidence: Hearsay. In determining admissibility under the residual
hearsay exception, a court must examine the circumstances surrounding the dec-
laration in issue and may consider a variety of factors affecting the trustworthi-
ness of a statement. A court may compare the declaration to the closest hearsay
exception as well as consider a variety of other factors affecting trustworthiness,
such as the nature of the statement, that is, whether the statement is oral or writ-
ten; whether a declarant had a motive to speak truthfully or untruthfully, which
may involve an examination of the declarant’s partiality and the relationship
between the declarant and the witness; whether the statement was made under
oath; whether the statement was spontaneous or in response to a leading ques-
tion or questions; whether a declarant was subject to cross-examination when
the statement was made; and whether a declarant has subsequently reaffirmed or
recanted the statement.
18. ____: ____. The residual hearsay exception is to be used rarely and only in
exceptional circumstances.
19. Criminal Law: Constitutional Law: Due Process: Rules of Evidence. Whether
rooted directly in the Due Process Clause of the 14th Amendment or in the
Compulsory Process or Confrontation Clauses of the 6th Amendment, the federal
Constitution guarantees criminal defendants a meaningful opportunity to present
a complete defense. However, the accused does not have an unfettered right to
offer testimony that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.
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20. Constitutional Law: Witnesses: Self-Incrimination: Waiver. A defendant’s
right to present a defense is not absolute and does not include the right
to compel a witness to waive his or her Fifth Amendment privilege against
self-incrimination.
21. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to
grant a mistrial for prosecutorial misconduct, the defendant must show that a
substantial miscarriage of justice has actually occurred.

Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Tyrese A. Phillips appeals his convictions in the district
court for Douglas County for second degree murder and use
of a deadly weapon to commit a felony. Phillips generally
claims that the court erred when it allowed a witness to assert
his Fifth Amendment privilege against self-incrimination and
failed to grant the witness use immunity, thereby preventing
testimony that Phillips asserts was helpful to his defense. He
claims in the alternative that the court should have admit-
ted the witness’ recorded statement to police under a hearsay
exception. He claims the foregoing rulings denied him a com-
plete defense. He also claims that a mistrial should have been
declared or that a new trial should have been granted because
the State knew a witness would testify falsely and withheld
exculpatory evidence when it did not inform him prior to
trial of certain statements made by a potential witness. We
reject Phillips’ assignments of error and affirm his convictions
and sentences.
STATEMENT OF FACTS
The State charged Phillips with first degree murder and
use of a deadly weapon to commit a felony as a result of
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STATE v. PHILLIPS 977
Cite as 286 Neb. 974

an incident in which Phillips shot and killed Joseph Piper.
The incident involved a confrontation between two groups of
people that included several high school students. Phillips and
Piper were on opposite sides of the confrontation. There were
various witnesses at trial who described the incident, including
participants and observers. Each witness told his or her own
version of events, but the following description incorporates
testimony of these witnesses.
The confrontation came about as a result of a dispute
between Phillips’ friend, Mitch Harrington, and Piper’s friend,
Mario Gutierrez. Gutierrez was upset with Harrington because
Harrington had argued with Gutierrez’ girlfriend and called
her derogatory names. It was decided that Gutierrez would
fight Harrington after school on April 5, 2011. On that day,
Harrington met at his house with Phillips and two other
friends, one of whom was Tyler Weakly, who were to give
Harrington a ride and be his backup for the fight. They left
the house in Weakly’s car. They had two baseball bats in the
car, and Phillips was carrying a handgun. That same after-
noon, Gutierrez and Piper went to the home of Jacob Jensen,
where they and other friends of Jensen, including Duane Cox,
helped Jensen move some furniture before they headed out for
the fight.
Harrington and his friends arrived at a discount store’s park-
ing lot, where it had been determined the fight would take
place. When they arrived, Gutierrez was present with a group
of approximately 20 people who were there either to sup-
port Gutierrez or to watch the fight. Harrington and Gutierrez
engaged in a brief fist fight but suspended the fight after learn-
ing that the police had been called to that location.
Harrington and Gutierrez decided to move to a local
city park to continue the fight. Harrington’s group, which
included Phillips, arrived at the park before Gutierrez; they
exchanged words with some of Gutierrez’ friends who were
already at the park, but no fighting broke out. About a
half hour later, a truck and a Ford Expedition driven by
Jensen and Cox, respectively, arrived. Several men, including
Gutierrez, got out of the vehicles; some of them were carry-
ing what looked to be bats or pipes. Gutierrez’ group began
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walking toward the vehicle in which Harrington’s group sat.
Members of Gutierrez’ group were yelling things to antago-
nize Harrington’s group.
Phillips got out of the vehicle. He pulled out his gun and
cocked it as he walked toward Gutierrez’ group. Phillips fired
some shots into the air, but members of Gutierrez’ group
said that the gun was “fake” and they kept advancing toward
Phillips. Piper, who was part of Gutierrez’ group, was yelling
and waving his hands in the air as the group advanced toward
Phillips. Phillips fired some more shots, this time into the
ground. The shots caused dust and dirt to fly up, which in turn
caused most members of Gutierrez’ group to retreat to their
vehicles. Piper was the sole member of the group who contin-
ued toward Phillips.
Piper and Phillips exchanged words, while Piper made ges-
tures that some witnesses described as gang signs. When Piper
began to return to the vehicles, Phillips ran up to him and put
the gun to Piper’s head. They exchanged more words before
Phillips stepped back and shot Piper in the chest. Piper imme-
diately fell to the ground. Phillips stood over Piper and fired
more shots at him as he lay on the ground. One witness testi-
fied that Phillips told the Gutierrez group to “‘[c]ome pick up
your dead homey.’”
Weakly was driving the vehicle that was occupied by mem-
bers of Harrington’s group. Weakly drove near Phillips, and
Phillips got into the vehicle. The vehicle took off at a high rate
of speed. Members of Gutierrez’ group took off after them,
but the vehicle driven by Weakly eventually lost them. Weakly
took Harrington and Phillips to Phillips’ home.
Piper died from the gunshot wounds, and Phillips was
arrested. At Phillips’ trial, the State presented testimony from
various witnesses, including witnesses who had participated in
or had seen the confrontation between the two groups.
Phillips’ theory of defense was that he acted in self-defense
and in defense of others and, alternatively, that if he was guilty
of a crime, it was the lesser offense of manslaughter. Key to
Phillips’ defense were his claims that Piper had a gun and that
he aimed it at Phillips. In his defense, Phillips presented sev-
eral witnesses and testified himself.
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Phillips testified, inter alia, that before he got out of the
vehicle and as Piper and the others were advancing toward the
vehicle, Piper motioned to his waistband and lifted his shirt.
Phillips saw a black handle. He got out of the car and fired
shots into the air, but the other group said he was shooting
blanks and kept advancing while yelling derogatory terms,
including racial slurs, at Phillips. He shot at the ground to
show them that the gun was real. While some of the group
retreated, Piper was “patting his waistline saying something,”
which action Phillips described as “gesturing that he wanted
to shoot.” Phillips started to retreat, but someone from the
other group yelled a derogatory term at Phillips and he turned.
Phillips testified that he saw Piper aiming a gun at him. Phillips
fired his gun at Piper.
Contrary to the testimony of other witnesses, Phillips testi-
fied that he stopped shooting when Piper hit the ground. A
witness for the State who conducted the autopsy testified that
six bullets hit Piper and that he died from multiple gunshot
wounds. Phillips testified that he ran up to check Piper’s con-
dition and that he told Piper’s friends to get him to a hospital.
Phillips started to back up, and he saw Gutierrez and one
of his friends run up to Piper and take the gun from Piper.
Weakly then drove up to Phillips and told him to get in the car.
Phillips did, and they left the park while being chased by the
other group.
Because various witnesses had testified that Piper did not
have a gun, Phillips attempted to bolster his defense by pre-
senting testimony from Weakly that Weakly had seen Piper
with a gun. Hours after the shooting on April 5, 2011, Weakly
was arrested and questioned by police. Weakly gave the police
a statement regarding the incident in which he stated, inter alia,
that when Gutierrez’ group arrived at the park and was walk-
ing toward the vehicle occupied by Weakly, Phillips, and oth-
ers, Piper lifted his shirt and displayed a gun in his waistband.
Weakly also stated that Piper was showing gang signs and that
Phillips shot Piper after Piper lifted his shirt a second time.
After he gave his statement to police, Weakly was charged with
being an accessory to a felony. The charge against Weakly was
pending at the time of Phillips’ trial.
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Phillips knew that Weakly planned to invoke his Fifth
Amendment right against self-incrimination in order to avoid
testifying at Phillips’ trial. Therefore, Phillips made a show-
ing to the court outside the presence of the jury in order to
address issues regarding Weakly’s testimony. During the trial,
Phillips called Weakly as a witness. After giving his name
and testifying that he had been charged as an accessory to a
felony in connection with the charges against Phillips and that
he had given a statement to police, Weakly asserted his Fifth
Amendment right to remain silent and would not answer fur-
ther questions. The court ruled that based on Weakly’s invoca-
tion of his Fifth Amendment rights, the court would not require
Weakly to answer Phillips’ questions. Phillips later requested
the court to order the State to grant use immunity to Weakly
to allow Weakly to testify at Phillips’ trial. The court refused
the request.
When it was clear that Weakly would be unavailable as a
witness due to his invocation of his Fifth Amendment rights,
Phillips attempted to have a recording of Weakly’s statement
to police admitted into evidence. Phillips summarized the
content of the recorded statement and argued that the state-
ment was admissible as an exception to the hearsay rule.
Phillips focused on Weakly’s statement that Piper had a gun
and specifically argued that the statement could be admit-
ted either as a statement against penal interest or under the
residual hearsay exception. The court ruled that Weakly’s
statement that he saw Piper had a gun did not expose Weakly
to criminal liability and that therefore, the statement did not
qualify as a statement against penal interest. The court further
ruled that there were no equivalent guarantees of trustwor-
thiness to make the statement admissible under the residual
hearsay exception. The court concluded that the statement was
inadmissible hearsay.
During Phillips’ defense, he called Cox as a witness. Cox
was a part of the group that included Gutierrez and Piper dur-
ing the confrontation. Cox had been listed as a witness for
the State, but he was not called by the State. Cox testified
regarding the confrontation and stated that he and Jensen drove
vehicles to the park. When Phillips asked whether Cox had any
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weapons with him, Cox testified that he had a pipe. Phillips
asked whether Cox saw anyone besides himself armed with
any type of weapon. Cox testified that another member of his
group had a pipe and that Jensen “had a pistol.” Phillips asked
where the gun was located, and Cox testified, “It’s in his center
console where he always has it.” Phillips asked how Cox was
made aware that Jensen had a gun, and Cox replied, “Because
I know [Jensen].”
Phillips unsuccessfully tried to question Cox regarding
Cox’s interview with prosecutors before trial. Phillips made an
offer of proof outside the presence of the jury. Phillips ques-
tioned Cox, who acknowledged that when he first talked to
the police, he did not mention that Jensen had a gun. Cox also
testified that “several weeks” before the trial, he spoke with
the prosecutors and told them for the first time that Jensen had
a gun.
After Cox was excused, Phillips moved for a mistrial based
on prosecutorial misconduct. Phillips asserted that he learned
for the first time during Cox’s testimony at trial that Cox had
informed prosecutors that Jensen had a gun. He argued that the
State learned of this fact before the trial and had an obligation
to inform Phillips because the evidence was exculpatory and
would support Phillips’ theory of defense that a member of
Piper’s group had a gun at the confrontation. Phillips also con-
tended that Cox’s testimony showed that Jensen, who had testi-
fied for the State, was lying when Jensen testified that he had
removed his gun from the console of his vehicle and did not
have a gun at the confrontation and that the State knew Jensen
was lying when it presented his testimony. Phillips asserted he
was denied effective cross-examination of Jensen because he
did not know that Cox would testify that, contrary to Jensen’s
testimony, Jensen had a gun. Phillips argued that the State did
not call Cox as a witness because it knew Cox would testify
that Jensen had a gun.
The State argued in response that Cox’s statement before
trial and testimony at trial were merely that he assumed Jensen
had a gun in the console of his vehicle because he had seen
one there at other times. The State argued it did not have a
duty to disclose Cox’s statement before trial because Cox did
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not tell the State that Jensen possessed, displayed, or used
a gun during the confrontation. The State further noted that
Jensen had testified that he had a gun that he normally kept
in his vehicle, but that he took it out and put it in his house
before he went to the fight. The court overruled Phillips’
motion for a mistrial.
At the end of the trial, the jury acquitted Phillips of first
degree murder but found him guilty of second degree mur-
der and use of a deadly weapon to commit a felony. Phillips
moved for a new trial based in part on the court’s exclusion of
Weakly’s statement and the court’s overruling his motion for
a mistrial. The court overruled the motion for a new trial and
sentenced Phillips to imprisonment for consecutive terms of 50
to 60 years for second degree murder and 25 to 30 years for
use of a deadly weapon to commit a felony.
Phillips appeals.
ASSIGNMENTS OF ERROR
Phillips claims that the district court erred when it (1)
allowed Weakly to invoke the Fifth Amendment to avoid tes-
tifying at trial and in particular that Weakly saw that Piper
had a gun, (2) denied Phillips’ request to grant use immunity
to Weakly to allow him to testify in Phillips’ defense, (3)
concluded that the recording of Weakly’s statement was not
admissible as a statement against penal interest, (4) concluded
that the recording of Weakly’s statement was not admissible
under the residual hearsay exception, (5) denied him his con-
stitutional right to present a complete defense when he was not
allowed to present Weakly’s testimony that Piper had a gun,
and (6) overruled his motion for a mistrial and his motion for a
new trial based on the State’s withholding its knowledge before
trial that Cox had stated that Jensen had a gun.
STANDARDS OF REVIEW
[1] A court’s decision to allow a witness to invoke his or her
Fifth Amendment right against self-incrimination is reviewed
for an abuse of discretion. See State v. Robinson, 271 Neb. 698,
715 N.W.2d 531 (2006).
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[2,3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make such discretion a factor in determining
admissibility. State v. Valverde, ante p. 280, 835 N.W.2d 732
(2013). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Id.
[4] Apart from rulings under the residual hearsay exception,
we will review for clear error the factual findings underpinning
a trial court’s hearsay ruling and review de novo the court’s
ultimate determination whether the court admitted evidence
over a hearsay objection or excluded evidence on hearsay
grounds. See State v. Reinhart, 283 Neb. 710, 811 N.W.2d
258 (2012).
[5] Because of the factors a trial court must weigh in
deciding whether to admit evidence under the residual hear-
say exception, an appellate court applies an abuse of discre-
tion standard to hearsay rulings under the residual hearsay
exception. See State v. Pullens, 281 Neb. 828, 800 N.W.2d
202 (2011).
[6,7] The determination of whether procedures afforded an
individual comport with constitutional requirements for proce-
dural due process presents a question of law. State v. Watson,
285 Neb. 497, 827 N.W.2d 507 (2013). On questions of law, a
reviewing court has an obligation to reach its own conclusions
independent of those reached by the lower courts. Id.
[8] Whether to grant a motion for mistrial is within the trial
court’s discretion, and this court will not be disturb its ruling
unless the court abused its discretion. State v. Dixon, ante p.
334, 837 N.W.2d 496 (2013).
[9,10] An appellate court reviews a motion for new trial on
the basis of prosecutorial misconduct for an abuse of discretion
of the trial court. State v. Williams, 282 Neb. 182, 802 N.W.2d
421 (2011). Whether prosecutorial misconduct is prejudicial
depends largely on the facts of each case. Id.
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ANALYSIS
Fifth Amendment: Court Did Not Err
When It Allowed Weakly to Invoke
His Fifth Amendment Privilege.
Phillips first claims the district court erred when it allowed
Weakly to invoke the Fifth Amendment to avoid testifying at
trial. Phillips makes clear that the evidence he sought from
Weakly would have been Weakly’s testimony to the effect that
Weakly saw that Piper had a gun. Because Weakly’s testimony
regarding the incident, including testimony that Piper had a
gun, would have a provided a link in the chain of evidence
which exposed Weakly to criminal liability, we conclude that
the court did not err when it allowed Weakly to invoke the
Fifth Amendment and refuse to testify at Phillips’ trial.
[11,12] The state and federal Constitutions provide that no
person shall be compelled to give evidence against himself
or herself of an incriminating nature. State v. Robinson, 271
Neb. 698, 715 N.W.2d 531 (2006). The U.S. Supreme Court
has stated that the Fifth Amendment “must be accorded liberal
construction in favor of the right it was intended to secure.”
Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814,
95 L. Ed. 1118 (1951). Thus, unlike the analysis regard-
ing admissibility under the hearsay exception for statements
against penal interest under Neb. Rev. Stat. § 27-804(2)(c)
(Reissue 2008) discussed below, wherein we parse the state-
ment for admissible and nonadmissible portions of evidence,
see Williamson v. United States, 512 U.S. 594, 114 S. Ct.
2431, 129 L. Ed. 2d 476 (1994), the analysis under the Fifth
Amendment ordinarily examines an entire line of question-
ing to determine whether to exclude the testimonial evidence
based on privilege. See Hoffman, supra. Further, the Fifth
Amendment privilege not only permits a person to refuse to
testify against himself or herself during a criminal trial in
which he or she is a defendant, but also grants him or her
the privilege to refuse to answer questions put to him or her
in any other proceeding, civil or criminal, formal or infor-
mal, where the answers might tend to incriminate him or
her in future criminal proceedings. In re Interest of Clifford
M. et al., 6 Neb. App. 754, 577 N.W.2d 547 (1998) (citing
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Allen v. Illinois, 478 U.S. 364, 106 S. Ct. 2988, 92 L. Ed. 2d
296 (1986)).
[13] While a witness may invoke the Fifth Amendment
to avoid answering questions, the witness’ assertion of the
privilege does not by itself establish the risk of incrimina-
tion; instead, the court must make inquiry to determine itself
whether answering the questions would raise Fifth Amendment
concerns. See Robinson, supra. Because of the constitutional
dimension of the privilege, and consistent with Hoffman, supra,
we have stated that when a court inquires into the propriety of
an invocation of the Fifth Amendment privilege, the guarantee
against compulsory self-incrimination must be accorded a lib-
eral construction. Robinson, supra.
[14] The privilege against compulsory self-incrimination
afforded by the Fifth Amendment “not only extends to answers
that would in themselves support a conviction . . . but likewise
embraces those which would furnish a link in the chain of evi-
dence needed to prosecute the claimant.” Hoffman, 341 U.S. at
486. Accord Robinson, supra. It need only be evident from the
implications of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation of
why it cannot be answered might be dangerous because injuri-
ous disclosure could result. Robinson, supra.
When Phillips called Weakly as a witness in his defense,
Weakly gave his name and testified that he had been charged
as an accessory to a felony in connection with the charges
against Phillips and that he had given a statement to police.
Weakly then asserted his Fifth Amendment right to remain
silent and would not answer further questions. Following argu-
ment by counsel and upon due consideration, the court ruled
that because Weakly had invoked his Fifth Amendment privi-
lege, the court would not require Weakly to answer any more
of Phillips’ questions regarding the incident.
In the present case, Weakly was charged with being an
accessory to the crimes for which Phillips was being tried.
Therefore, questions and answers that might tend to incrimi-
nate Weakly of such charge are subject to Weakly’s invocation
of the Fifth Amendment privilege. Phillips’ argument on appeal
focuses on Weakly’s anticipated testimony that Piper had a
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gun at the time of the incident. Phillips contends that even if
other matters to which Weakly might have testified could have
incriminated Weakly, testimony that Piper had a gun, stand-
ing alone, would not have incriminated Weakly of anything in
particular and therefore, Weakly should not have been allowed
to invoke his Fifth Amendment privilege to avoid answering
that specific question. We reject Phillips’ argument because,
although the specific statement may not in itself have incrimi-
nated Weakly, the testimony was inextricably tied with other
statements which would incriminate Weakly.
At the time of Phillips’ trial, Weakly was facing the charge
of being an accessory to the felony for which Phillips was
being tried. The centerpiece of the State’s anticipated case
against Weakly was that Weakly was present during the inci-
dent and in particular drove Phillips away from the scene. Any
testimony by Weakly that would place him at the scene of the
shooting would be an admission that he was present when the
incident occurred, and such admission would be powerful evi-
dence in a proceeding against Weakly. Weakly could not testify
that he saw Piper had a gun during the confrontation without
also providing explicit testimony that placed him at the scene
of the shooting. The narrative which Phillips sought through
the testimony by Weakly would provide a link in the chain of
evidence that could incriminate Weakly as an accessory to the
felony for which Phillips was being tried.
Giving, as we must, a liberal construction to the guarantee
against compulsory self-incrimination, we conclude that testi-
mony by Weakly that he saw that Piper had a gun was covered
by Fifth Amendment protection and that therefore, the district
court did not abuse its discretion when it allowed Weakly to
invoke his Fifth Amendment privilege. We find no merit to this
assignment of error.
Immunity: Court Did Not Err When
It Refused to Initiate and Grant
Weakly Use Immunity in Order
to Force Him to Testify.
Phillips claims the district court erred when it denied his
request that the court grant use immunity to Weakly to allow
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him to testify in Phillips’ defense. We conclude that because
the court cannot grant immunity without a request from the
prosecutor, the court did not err when it refused to initiate and
grant such immunity.
Once the court concluded that it would allow Weakly to
invoke the Fifth Amendment to avoid testifying that he saw
Piper had a gun, Phillips requested the court to order the State
to grant use immunity to Weakly which would allow Weakly to
testify at Phillips’ trial without fear that his testimony would be
used against Weakly in a future proceeding. The prosecutor did
not move the court to grant immunity to Weakly. Immunity was
not granted. The court refused Phillips’ request.
Phillips’ argument relies in part on Neb. Rev. Stat.
§ 29-2011.02 (Reissue 2008) which provides:
Whenever a witness refuses, on the basis of the privi-
lege against self-incrimination, to testify or to provide
other information in a criminal proceeding . . . , the court,
on motion of the county attorney [or] other prosecuting
attorney . . . may order the witness to testify or to pro-
vide other information. The witness may not refuse to
comply with such an order of the court on the basis of
the privilege against self-incrimination, but no testimony
or other information compelled under the court’s order or
any information directly or indirectly derived from such
testimony or other information may be used against the
witness in any criminal case except in a prosecution for
perjury, giving a false statement, or failing to comply with
the order of the court.
[15] Phillips’ reliance on § 29-2011.02 as support for his
argument is misplaced. Given the facts, § 29-2011.02 does
not apply directly to the present case, because it was Phillips
rather than the State who requested the order. We have stated
that absent a motion by the county attorney or other prosecut-
ing attorney, a trial court lacks authority to grant immunity and
order a witness to testify. State v. Starks, 229 Neb. 482, 427
N.W.2d 297 (1988).
Phillips nevertheless contends that a court has inherent
authority to grant a witness use immunity. In support of
his argument, Phillips cites Government of Virgin Islands v.
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Smith, 615 F.2d 964 (3d Cir. 1980), wherein the U.S. Court
of Appeals for the Third Circuit held that a trial court could
itself grant judicial immunity to a witness in order to vindi-
cate the defendant’s constitutional right to a fair trial. The
Third Circuit limited use of such authority to two situations:
(1) when the government’s decision to not grant immunity is
made with the deliberate intention of distorting the judicial
factfinding process and (2) when the defendant is prevented
from presenting exculpatory evidence crucial to the defend­
ant’s case.
This court has previously addressed arguments urging
adoption of the holding in Government of Virgin Islands,
supra. In Starks, supra, we decided that it was not necessary
to consider whether the holding should be adopted because
the facts of the case at hand did not present either of the two
situations in which the Third Circuit held that the authority
could be exercised. In State v. Robinson, 271 Neb. 698, 715
N.W.2d 531 (2006), we addressed a similar argument and
noted that other federal courts of appeal had held that trial
courts did not have inherent authority to grant use immunity
to a defendant’s witnesses and that no other federal circuit
had followed the Third Circuit’s holding in Government of
Virgin Islands. We stated in Robinson that “[t]rial courts in
Nebraska do not have inherent authority to confer immunity,”
271 Neb. at 726, 715 N.W.2d at 557, and we concluded that
the trial court did not err when it refused to order the State to
grant immunity to witnesses who invoked their right against
self-incrimination.
We note that the Third Circuit recently disapproved of its
holding in Government of Virgin Islands, supra, to the effect
that a trial court has inherent authority to grant a witness judi-
cial immunity. See U.S. v. Quinn, 728 F.3d 243 (3d Cir. 2013).
On August 14, 2013, the Third Circuit filed Quinn in which it
noted, as this court had observed in Robinson, that it was the
only federal court of appeals that had recognized judicial use
immunity for witnesses and that other courts had rejected it.
The Third Circuit reconsidered its holding in Government of
Virgin Islands in terms of the separation of powers between
branches of government and concluded that “[a]s Congress
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has given the power to immunize a witness solely to the
Executive Branch, it is not a power courts can exercise.” 728
F.3d at 254.
Therefore, to the extent that Phillips relies on Government
of Virgin Islands, supra, as support for the proposition that
the trial court had authority to grant Weakly use immunity,
such argument is unavailing. Similar to the Third Circuit’s
reasoning in Quinn, supra, and consistent with our opinion in
Robinson, supra, we conclude that because the Legislature in
§ 29-2011.02 has given courts the power to immunize a wit-
ness solely upon the request of the prosecutor, it is not a power
the court can exercise upon the request of the defendant or
upon its own initiative.
For completeness, we note that although the Third Circuit in
Quinn abandoned judicially initiated use immunity as a rem-
edy, it continued to use the standards set forth in Government
of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980), to
determine whether the government has violated the defendant’s
right to a fair trial when a witness is not immunized. Phillips’
assignment of error in this case with regard to immunity is lim-
ited to an argument that the district court erred when it denied
his request to initiate and grant Weakly use immunity. In a
separate assignment of error, Phillips asserts that his constitu-
tional due process right to present a complete defense was vio-
lated when he was not allowed to present Weakly’s testimony
that Piper had a gun. We consider that separate assignment of
error below.
We conclude that the district court did not err when it
refused Phillips’ request to grant Weakly use immunity, and we
reject this assignment of error.

Hearsay Exception: Court Did Not Err When It
Concluded That Weakly’s Recorded Statement
Was Not Admissible as an Exception to the
Rule Against Hearsay as a Statement
Against Penal Interest.
Phillips next claims the district court erred when it con-
cluded that Weakly’s statement to the effect that Piper had a
gun made to police in an extended recorded statement was not
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admissible as a statement against Weakly’s penal interest. See
§ 27-804(2)(c). We determine that the remark that Piper had a
gun was not a self-inculpatory statement on Weakly’s part and
that therefore, the court did not err when it concluded that this
hearsay statement was not admissible as an exception to the
rule against hearsay as a statement against the penal interest of
the declarant, Weakly.
Once it was clear that Weakly would not be required to
testify at Phillips’ trial, Phillips attempted to have Weakly’s
recorded statement to police admitted into evidence. Although
the entire statement covered various aspects of the inci-
dent during which Phillips shot Piper, Phillips’ argument
is focused on the specific remark that Weakly saw that
Piper had a gun. The parties do not appear to dispute that
the recorded statement was hearsay or that Weakly, as the
declarant, was unavailable as a witness at Phillips’ trial due
to his successful invocation of his Fifth Amendment right
against self-­ncrimination. Instead, the argument on appeal is
i
whether Weakly’s pretrial statement that Piper had a gun met
one of the hearsay exceptions urged by Phillips—as a state-
ment against penal interest, § 27-804(2)(c), or, as we discuss
later in this opinion, under the residual hearsay exception,
§ 27-804(2)(e). The district court rejected both arguments and
concluded that the remark was inadmissible hearsay. We agree
with both determinations.
Under Neb. Rev. Stat. § 27-802 (Reissue 2008), hearsay is
not admissible unless it meets an exception under the rules,
and under § 27-804, certain types of hearsay are admissible
if the declarant is unavailable as a witness. The statement
under consideration is hearsay, and Weakly was unavail-
able as a witness at Phillips’ trial. See, State v. McGee, 282
Neb. 387, 803 N.W.2d 497 (2011) (stating that declarant
who invoked Fifth Amendment privilege was unavailable as
witness); § 27-804(1)(a) (unavailability includes situation
in which declarant is exempted from testifying on ground
of privilege).
Phillips argued that Weakly was unavailable and that
Weakly’s hearsay statement to police qualified as a statement
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against penal interest and was therefore “not excluded by the
hearsay rule.” § 27-804(2). Under § 27-804(2)(c), hearsay
that is admissible if the declarant is unavailable includes
“[a] statement which . . . at the time of its making . . . so
far tended to subject him to . . . criminal liability . . . that a
reasonable man in his position would not have made the state-
ment unless he believed it to be true.” This type of statement
is commonly referred to as a “statement against penal inter-
est.” As an initial matter, to qualify as a statement against
penal interest under § 27-804(2)(c), the statement must be
self-inculpatory. See Williamson v. United States, 512 U.S.
594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994). Phillips
contends that Weakly’s statement that Piper had a gun is
self-inculpatory.
Section 27-804(2)(c) also provides that “[a] statement tend-
ing to expose the declarant to criminal liability and offered
to exculpate the accused is not admissible unless corrobo-
rating circumstances clearly indicate the trustworthiness of
the statement.” Phillips offered Weakly’s statement to excul-
pate himself, and he therefore needed to show that, in addi-
tion to subjecting Weakly to criminal liability, corroborat-
ing circumstances clearly indicated the trustworthiness of
Weakly’s statement.
In his appellate brief, Phillips contends that Weakly’s remark
that the victim had a gun, which is contained within Weakly’s
extended narrative recorded by the police, should have been
admitted under § 27-804(2)(c) as a statement against penal
interest. The State disagrees and asserts that the remark to the
effect that Piper had a gun is not a statement against Weakly’s
penal interest. Phillips asserts that the State’s disagreement
“amplifies the absurdity of the situation[.] On[] the one hand
[the State urges that] the statement is precluded on privilege
grounds because it is incriminatory to Weakly; but at the same
time [the State urges that] it is precluded because it is not
really a statement against penal interest.” Brief for appellant at
39-40. Phillips also seems to argue that because the recorded
statement as a whole is harmful to Weakly, then it follows that
any content within the complete narrative is a statement against
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penal interest and, therefore, admissible. Phillips misperceives
the application of the statutory statement against penal interest
exception in § 27-804(2)(c).
Unlike the expansive construction accorded individual
remarks under examination for exclusion pursuant to the con-
stitutional privilege against self-incrimination discussed ear-
lier in this opinion, individual remarks under examination
pursuant to the statutory hearsay exception in § 27-804(2)(c)
must meet the test of “whether the particular remark at issue
(and not the extended narrative) meets the standard set forth
in the Rule [concerning admissibility of statements against
penal interest].” See Williamson, 512 U.S. at 607 (Scalia, J.,
concurring). “The question under Rule 804(b)(3) [equivalent
to § 27-804(2)(c)] is always whether the statement was suf-
ficiently against the declarant’s penal interest ‘that a reason-
able person in the declarant’s position would not have made
the statement unless believing it to be true’ . . . .” Williamson,
512 U.S. at 603-04 (quoting Fed. R. Evid. 804(b)(3)). As an
example of a statement against penal interest, the Williamson
Court stated: “[A] declarant’s squarely self-inculpatory con-
fession—‘yes, I killed X’—will likely be admissible under
Rule 804(b)(3) against accomplices of his who are being tried
under a co-conspirator liability theory. See Pinkerton v. United
States, 328 U. S. 640, 647[, 66 S. Ct. 1180, 90 L. Ed. 2d 1489]
(1946).” 512 U.S. at 603.
[16] “Statement” in § 27-804(2)(c) is a word of art; a “state-
ment” within the meaning of § 27-804(2)(c) is a specific indi-
vidual statement that a proponent offers into evidence rather
than the entire narrative of which the statement is a part. We
have noted that “§ 27-804(2)(c) uses the term ‘statement’ in
a narrow sense to refer to a specific declaration or remark
incriminating the speaker and not more broadly to refer to
the entire narrative portion of the speaker’s confession.” State
v. Sheets, 260 Neb. 325, 337, 618 N.W.2d 117, 128 (2000),
disapproved on other grounds, State v. McCulloch, 274 Neb.
636, 742 N.W.2d 727 (2007). Our jurisprudence in this area
follows that of the U.S. Supreme Court which has said that
the federal equivalent of § 27-804(2)(c), rule 804(b)(3), “does
not allow admission of non-self-inculpatory statements, even if
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they are made within a broader narrative that is generally self-
inculpatory. The district court may not just assume . . . that a
statement is self-inculpatory because it is part of a fuller con-
fession.” Williamson v. United States, 512 U.S. 594, 600-01,
114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994). The Court reasoned
in Williamson that “[t]he fact that a person is making a broadly
self-inculpatory confession does not make more credible the
confession’s non-self-inculpatory parts. One of the most effec-
tive ways to lie is to mix falsehood with truth . . . .” 512 U.S.
at 599-600.
The reasoning behind the hearsay exception for a statement
against penal interest is that a person would not make such a
statement unless the statement were true. However, it is possi-
ble that within the context of a confession, admission, or other
statement generally against a person’s penal interest, a person
might make statements that would tend to lessen his or her
culpability. We believe that under the reasoning in Williamson,
it logically follows that such statements do not carry the same
indication of trustworthiness as a statement that clearly exposes
a person to criminal liability; while there is no clear motivation
to lie about a fact that could expose one to criminal liability,
there is clear motivation to lie about something that lessens
one’s culpability.
In the present case, the statement that Phillips sought to put
into evidence was Weakly’s specific remark that he saw that
Piper had a gun. Under Williamson, we look at the particular
remark; and the comment that Piper possessed a gun standing
alone would not tend to subject Weakly to criminal liability.
The specific statement was not a statement against Weakly’s
penal interest and to the contrary, and viewing the remark “in
light of all the surrounding circumstances,” see Williamson,
512 U.S. at 604, the statement would tend to lessen Weakly’s
criminal liability as an accessory to a felony committed by
Phillips. Contrary to the dissent’s view, Weakly had a motive
to fabricate lies. After all, driving an individual away from a
crime scene who has a halo of self-defense is better for Weakly
than driving an individual away who is an unprovoked aggres-
sor. Even a person not trained in the law, such as Weakly,
would so assume. Piper’s possession of a gun would tend to
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lessen or eliminate Phillips’ culpability and, by extension,
Weakly’s culpability as an accessory.
While parts of Weakly’s narrative to police were against
his penal interest, the specific remark that Phillips sought to
have admitted—that Piper had a gun—was not, standing alone,
sufficiently against Weakly’s penal interest that a reasonable
person in Weakly’s position would not have made it unless
believing it to be true. The statement did not qualify as hear-
say that is admissible pursuant to § 27-804(2)(c). We therefore
determine that the district court did not err when it ruled that
the offered statement was not admissible as a statement against
penal interest. We reject this assignment of error.

Hearsay Exception: Court Did Not Err When
It Concluded That Weakly’s Recorded
Statement Was Not Admissible as an
Exception to the Rule Against
Hearsay Under the Residual
Hearsay Exception.
Phillips also claims the district court erred when it concluded
that Weakly’s recorded statement was not admissible under the
residual hearsay exception. See § 27-804(2)(e). We conclude
that because the statement that Piper had a gun tended to lessen
Weakly’s culpability, it did not have the required level of trust-
worthiness required by this exception, and that the court did
not abuse its discretion when it determined it was not admis-
sible under the residual hearsay exception.
The residual hearsay exception found at § 27-804(2)(e)
provides:
A statement not specifically covered by any of the fore-
going exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that
(i) the statement is offered as evidence of a material fact,
(ii) the statement is more probative on the point for which
it is offered than any other evidence which the proponent
can procure through reasonable efforts, and (iii) the gen-
eral purposes of these rules and the interests of justice
will best be served by admission of the statement into
evidence. A statement may not be admitted under this
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exception unless the proponent of it makes known to the
adverse party, sufficiently in advance of the trial or hear-
ing to provide the adverse party with a fair opportunity
to prepare to meet it, his intention to offer the statement
and the particulars of it, including the name and address
of the declarant.
[17,18] In determining admissibility under the residual
hearsay exception, a court must examine the circumstances
surrounding the declaration in issue and may consider a vari-
ety of factors affecting the trustworthiness of a statement.
State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009). A court
may compare the declaration to the closest hearsay excep-
tion as well as consider a variety of other factors affecting
trustworthiness, such as the nature of the statement, that is,
whether the statement is oral or written; whether a declarant
had a motive to speak truthfully or untruthfully, which may
involve an examination of the declarant’s partiality and the
relationship between the declarant and the witness; whether
the statement was made under oath; whether the statement was
spontaneous or in response to a leading question or questions;
whether a declarant was subject to cross-examination when
the statement was made; and whether a declarant has subse-
quently reaffirmed or recanted the statement. Id. The residual
hearsay exception is to be used rarely and only in exceptional
circumstances. State v. Garner, 260 Neb. 41, 614 N.W.2d
319 (2000).
Under both the penal interest exception and the residual
hearsay exception, one offering hearsay evidence must show
that the circumstances of the making of the statement indicate
that such statement is trustworthy. Epp, supra. Under Epp,
we examine the admissibility of Weakly’s comment under
the residual hearsay exception by comparing the remark to
the penal interest exception. As we have explained above,
the specific statement that Piper had a gun does not suggest
trustworthiness because the remark does not support charges
against Weakly and instead tends to lessen Phillips’ and thus
Weakly’s culpability. Therefore, there is greater motivation for
fabrication and consequently less indication that the statement
was trustworthy.
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Because the statement lacks trustworthiness, we determine
that the district court did not abuse its discretion when it deter-
mined that the statement was not admissible under the residual
hearsay exception. We reject this assignment of error.

Court Did Not Violate Phillips’ Right
to Present a Complete Defense.
[19] Phillips claims that the district court denied him his
constitutional right to present a complete defense. Phillips’
argument centers on the court’s rulings that prevented him
from presenting evidence that Weakly saw Piper had a gun,
either through Weakly’s testimony or through admission of
his statement to police. He argues that these rulings violated
his right to present a complete defense. We have stated that
whether rooted directly in the Due Process Clause of the 14th
Amendment or in the Compulsory Process or Confrontation
Clauses of the 6th Amendment, the federal Constitution guar-
antees criminal defendants a meaningful opportunity to pre­
sent a complete defense. State v. Poe, 276 Neb. 258, 754
N.W.2d 393 (2008) (citing Crane v. Kentucky, 476 U.S. 683,
106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)). However, “[t]he
accused does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible
under standard rules of evidence.” Taylor v. Illinois, 484 U.S.
400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). We con-
clude that because the court made appropriate rulings with
regard to Weakly’s testimony and his hearsay statement, and
because Phillips presented evidence of the defense of his
choice, the court did not violate Phillips’ right to present a
complete defense.
[20] We first address the court’s ruling that allowed Weakly
to invoke his Fifth Amendment privilege to avoid testifying at
Phillips’ trial. Phillips argues that he was prevented from pre-
senting a complete defense because Weakly was not required to
testify at trial that Piper had a gun. However, it has been stated
that a defendant’s right to present a defense is not absolute and
does not include the right to compel a witness to waive his or
her Fifth Amendment privilege against self-incrimination. U.S.
v. Serrano, 406 F.3d 1208 (10th Cir. 2005) (citing holdings
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from various federal circuit courts of appeal). The U.S. Court
of Appeals for the 10th Circuit noted in Serrano that there
may be a due process violation if the government substantially
interferes with a witness’ decision and causes the witness to
decide against testifying. Phillips makes no assertion of such
coercion. We therefore conclude that it was not a violation of
Phillips’ right to present a complete defense when, as we have
determined above, the court properly allowed Weakly to invoke
his Fifth Amendment privilege.
We next address the court’s ruling that excluded Weakly’s
recorded statement under the hearsay rules and, in particular,
the ruling that rejected Phillips’ argument that Weakly’s testi-
mony was a statement against penal interest. Phillips’ argument
relies heavily on Holmes v. South Carolina, 547 U.S. 319,
126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006), in which the U.S.
Supreme Court concluded that a defendant’s right to present a
complete defense was violated when the trial court used an evi-
dentiary rule to exclude evidence offered by the defendant to
show that another person had committed the crime. In Holmes,
the Court concluded that the South Carolina rule was arbitrary
because, as applied, if the prosecutor’s case was strong enough,
the evidence of third-party guilt sought to be introduced by the
defendant was excluded under the rule, regardless of the merits
of such third-party guilt evidence. Under Holmes, proper appli-
cation of well-established rules of evidence are acceptable but
“the Constitution . . . prohibits the exclusion of defense evi-
dence under rules that serve no legitimate purpose or that are
disproportionate to the ends that they are asserted to promote.”
547 U.S. at 326.
In State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003),
we rejected an argument that due process required the trial
court to allow the defense to present a hearsay statement.
We noted that in Chambers v. Mississippi, 410 U.S. 284,
93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), the U.S. Supreme
Court had held that due process may require admission of a
third party’s statements against penal interest exculpating the
accused where the statements were made under circumstances
that provided considerable assurance of their reliability. We
further noted that Nebraska had codified the exculpatory penal
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interest exception in § 27-804(2)(c) and that the requirement in
subsection (2)(c) that there exist corroborating circumstances
which clearly indicate the trustworthiness of the proferred
hearsay was substantially similar to the Chambers require-
ment of considerable assurance of reliability. We concluded in
Lotter that the due process analysis was encompassed within
the evidentiary statute and that therefore, because the evidence
was properly excluded under the statutory framework, its
exclusion did not violate due process requirements.
In the present case, because we have determined that
Weakly’s statement was properly excluded under the hearsay
rule, we similarly conclude that the exclusion of the evidence
did not violate Phillips’ right to present a complete defense.
Upon our review of the record, we also note that Phillips was
able to pursue his choice of defense in general and, in particu-
lar, present evidence contrary to that of the prosecution’s case
through his own testimony in which he testified that Piper had
a gun.
We conclude that neither the court’s ruling allowing Weakly
to invoke his Fifth Amendment privilege nor the court’s ruling
excluding the recorded statement under the established hearsay
rules violated Phillips’ right to present a complete defense. We
reject this assignment of error.

Court Did Not Err When It Overruled
Phillips’ Motions for a Mistrial
and for a New Trial.
Phillips finally claims the district court erred when it over-
ruled his motion for a mistrial and his motion for a new trial
based on Phillips’ assertion that the State withheld its knowl-
edge before trial of Cox’s statement that Jensen had “a gun
with him at the park.” Brief for appellant at 48. We determine
that the court did not abuse its discretion when it determined
that there was no prosecutorial misconduct that required either
a mistrial or a new trial.
In his arguments in favor of both the motion for a mistrial
and the motion for a new trial, Phillips asserted that it was a
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963), when the State did not inform him
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before trial of Cox’s statements about Jensen’s gun. We have
described the requirements of Brady as follows:
Under Brady v. Maryland, a prosecutor who fails to
turn over evidence “favorable to an accused upon request
violates due process where the evidence is material . . .
to guilt.” The Court expanded this rule in United States
v. Bagley[, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d
481 (1985)]. Under Bagley, prosecutors have a duty to
present material exculpatory evidence even if defense
counsel never requests the evidence. Favorable evidence
is material if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result
of the proceeding would have been different. A reason-
able probability of a different result is shown when the
State’s evidentiary suppression undermines confidence in
the outcome of the trial.
State v. Jackson, 275 Neb. 434, 449, 747 N.W.2d 418, 433-34
(2008). Phillips contends that Cox’s statement about Jensen’s
gun was favorable to him because it supported his theory of
self-defense, namely, that because Jensen brought a gun to the
park, Piper had access to a gun. Phillips asserts that the jury
could have inferred that the gun Phillips testified was in Piper’s
possession was Jensen’s gun. He also argues that the State
presented testimony that it knew was false when it allowed
Jensen to testify that he did not bring a gun to the scene of
the confrontation.
The district court rejected these arguments, and upon
review, we determine that it did not abuse its discretion in so
ruling. Fundamental to Phillips’ argument is his characteriza-
tion of Cox’s statement to law enforcement prior to trial and
his testimony at trial. We therefore describe and recite from
the record.
In their statements to law enforcement, both Cox and Jensen
denied possessing a firearm during the altercation that led to
Phillips’ killing Piper. Jensen testified at trial that he removed
his firearm from his vehicle prior to driving to the park. Cox
testified for the defense at trial as follows:
Q Did you see any of the individuals you were with
besides you and [Piper] exit vehicles?
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A No.
Q Did . . . Jensen ever — to your knowledge did you
ever see him outside of the vehicle?
A No.
Q Did you see anyone besides yourself armed with any
type of weapon?
A Yeah.
Q Who?
A Well Jeremy [Hilliard] had the pipe and then [Jensen]
had a pistol.
Q Okay. And where did he have the pistol?
A It’s in his center console where he always has it.
Q And how were you made aware that he had it?
A Because I know [Jensen].
Q Okay. Did you see him out — you said you never
saw him outside the car, though?
A No, no. He never got out.
Following this testimony, Phillips then attempted to ask Cox
if he told the prosecutors “anything about seeing . . . Jensen
with a pistol” when Cox met with them a week or two prior
to trial, but this line of questioning was excluded as hearsay.
Phillips then made an offer of proof outside the presence of
the jury.
In Phillips’ offer of proof, Cox testified as follows:
Q Okay. With regard to the questions and answers I
want to ask . . . you acknowledge that when the police
talked to you on that day you didn’t mention any-
thing about any of you or your friends having a pistol;
correct?
A Yes.
Q Yesterday you testified that, in fact — [be]cause one
of your friends did have a pistol; right?
A Yes.
Q And you indicated that you spoke to the pros-
ecutors about this matter several weeks ago before trial
started; correct?
A Yes.
Q And where did that take place?
A At my place of employment.
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Q Okay. And during that interview with the prosecu-
tors, did you, for the first time, tell them that Jensen did
have a gun?
A Yes.
Q So they knew that, then; right? But that’s the first
time you had admitted that; true?
A Yes.
Following this offer, the court reaffirmed its ruling exclud-
ing testimony regarding the pretrial interview with prosecutors
and Phillips then moved for a mistrial based on prosecutorial
misconduct. Phillips argued that the prosecutors (1) knew
before putting Jensen on the stand that contrary to what was in
the reports, he had a gun and would be lying under oath, and
(2) never informed him that Cox stated that Jensen had a gun,
which information was exculpatory.
The State opposed the motion for a mistrial and argued
that, like his testimony on direct examination, Cox simply
told the prosecutors that he assumed that Jensen had a gun
with him at the park because it was always in the console of
Jensen’s vehicle. The State asserted that Cox never told the
prosecutors that he actually saw Jensen use or display a gun
at the park; thus there was no information required to be dis-
closed to Phillips.
The district court found that Cox testified that knowing
Jensen’s habits, Cox assumed that Jensen had the gun in the
console of his vehicle at the park, but that there was no tes-
timony from Cox that Jensen actually had it out during the
incident at the park. The court then overruled the motion for a
mistrial, stating that there had been no substantial miscarriage
of justice given the state of the record. Following the verdict,
Phillips moved for a new trial, arguing the same position he
presented in his motion for a mistrial.
The district court entered an 11-page order denying Phillips’
motion for new trial. In overruling Phillips’ motion, the court
agreed with the State’s characterization of Cox’s testimony
to the effect that Cox did not state that he saw Jensen bring
a gun to the confrontation. Instead, Cox’s trial testimony was
that he knew Jensen had a gun in his vehicle because he knew
Jensen—meaning he knew Jensen normally carried a gun in
 Nebraska Advance Sheets
1002 286 NEBRASKA REPORTS

the console of his vehicle. Further, Cox’s testimony in the
offer of proof when read as a whole did not mean that Cox
told prosecutors pretrial that Cox saw Jensen bring a gun to
the park.
The court’s description of Cox’s testimony is consistent with
the record. Cox’s trial testimony was not that he actually knew
Jensen had a gun at the confrontation, but, rather, that he knew
Jensen normally carried a gun in his vehicle. Cox’s testimony
was consistent with that of Jensen. Jensen testified that he nor-
mally kept a gun in his vehicle; however, Jensen testified that
he left it at home before going to the park for the confronta-
tion. Cox’s statement to the prosecutors did not give the State
reason to think that Jensen’s testimony was false.
[21] Before it is necessary to grant a mistrial for prosecuto-
rial misconduct, the defendant must show that a substantial
miscarriage of justice has actually occurred. State v. Watson,
285 Neb. 497, 827 N.W.2d 507 (2013). Phillips has not shown
any prosecutorial misconduct that resulted in a substantial
miscarriage of justice. Phillips has not shown that the State
believed Jensen would give false testimony or a reasonable
probability that production of Cox’s statement to prosecutors
would have caused a different result in the trial. We therefore
determine that the district court did not abuse its discretion
when it overruled his motion for a mistrial. We similarly con-
clude that the court did not abuse its discretion when it over-
ruled his motion for a new trial made on the same basis. We
reject this assignment of error.

CONCLUSION
We determine that the district court did not err when it
allowed Weakly to invoke his Fifth Amendment privilege and
when it refused to initiate and grant Weakly use immunity. We
also determine that the court did not err when it determined
that Weakly’s recorded statement was excluded as hearsay
evidence that was not admissible either as a statement against
penal interest or under the residual hearsay exception. We
further conclude that such rulings with regard to Weakly’s
testimony and his recorded statement did not violate Phillips’
constitutional right to present a complete defense. We finally
 Nebraska Advance Sheets
STATE v. PHILLIPS 1003
Cite as 286 Neb. 974

determine that the court did not abuse its discretion when it
overruled Phillips’ motions for a mistrial and for a new trial.
We therefore affirm Phillips’ convictions and sentences for sec-
ond degree murder and for use of a deadly weapon to commit
a felony.
Affirmed.
Connolly, J., dissenting.
The court’s reasoning at the trial level and in the majority
opinion is inherently inconsistent. As the majority opinion
states, “Any testimony by Weakly that would place him at the
scene of the shooting would be an admission that he was pres-
ent when the incident occurred, and such admission would be
powerful evidence in a proceeding against Weakly.” If Weakly
can invoke the Fifth Amendment because his statement is
strong evidence of his guilt for charged and uncharged crimes,
then a reasonable person would not have made the statement
unless it were true. The district court’s ruling put Phillips’
defense into a legal cul-de-sac. The majority opinion closes
the circle.
So I disagree that under rule 804(2)(c),1 Weakly’s state-
ment was not a statement against his penal interest. It is true
that a court must look at separate parts of a larger narrative to
determine whether it was against the declarant’s penal interest.
But those statements should not lose their relationship to other
statements in the narrative when determining their signifi-
cance to a criminal prosecution. And I do not believe that in
Williamson v. United States,2 the U.S. Supreme Court intended
to pervert the truth-seeking functions of trials by excluding rel-
evant and trustworthy statements. The context in which Weakly
made the statement shows that it is reliable because he had no
motive to fabricate lies to curry favor with authorities, nor did
he shift blame to others.
Currying favor and shifting blame was the focus of the
Court’s concern in Williamson. There, officers stopped the

 1
See Neb. Evid. R. 804(2)(c), Neb. Rev. Stat. § 27-804(2)(c) (Reissue
2008).
 2
Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L.Ed.2d
476 (1994).
 Nebraska Advance Sheets
1004 286 NEBRASKA REPORTS

declarant, who had a significant quantity of cocaine in the
trunk of his car. During custodial questioning, he admitted to
his involvement in a drug conspiracy, but attempted to down-
play his role and shift blame to the defendant, as the “big
fish” in the scheme. The declarant told an investigator that
the cocaine belonged to the defendant and that he was trans-
porting it for the defendant. The investigator had promised
to report his cooperation to the prosecutor. So the declarant’s
statement tended to exclusively implicate someone else in
criminal acts. The statement did little to subject the declar-
ant to criminal liability because he had already confessed to
his involvement.
The Court reversed the judgment upholding the trial court’s
admission of the declarant’s statement as against penal interest.
It concluded that statements against penal interest are reliable
because “reasonable people, even reasonable people who are
not especially honest, tend not to make self-inculpatory state-
ments unless they believe them to be true.”3 In contrast, “[s]elf-
exculpatory statements are exactly the ones which people are
most likely to make even when they are false; and mere prox-
imity to other, self-inculpatory, statements does not increase
the plausibility of the self-exculpatory statements.”4 So the
Court held that the exception “does not allow admission of
non-self-inculpatory statements, even if they are made within a
broader narrative that is generally self-inculpatory.”5
But the Court noted that “[e]ven the confessions of
arrested accomplices may be admissible if they are truly
self-­nculpatory, rather than merely attempts to shift blame or
i
curry favor.”6 A court must view the statement in context to
determine whether it is self-inculpatory or not: “Even state-
ments that are on their face neutral may actually be against the
declarant’s interest.”7

 3
Id., 512 U.S. at 599.
 4
Id., 512 U.S. at 600.
 5
Id., 512 U.S. at 600-01.
 6
Id., 512 U.S. at 603.
 7
Id.
 Nebraska Advance Sheets
STATE v. PHILLIPS 1005
Cite as 286 Neb. 974

Under Nebraska’s rule 804(2)(c) and the federal counterpart,
the declarant need not have confessed to the crime charged
against the defendant. Instead, when the statement was made,
the statement must have so tended to subject the declarant to
criminal liability that a reasonable person would not have made
it unless believing it to be true. “[T]his question can only be
answered in light of all the surrounding circumstances.”8 And
this court has previously considered this question in determin-
ing whether the State’s offer of a declarant’s custodial state-
ments violated the Confrontation Clause.
As we know, in 2004, the Confrontation Clause landscape
shifted when the U.S. Supreme Court decided Crawford v.
Washington.9 It held that the Confrontation Clause bars the
admission of testimonial hearsay unless the witness is unavail-
able and the defendant had previous opportunity to cross-­
examine the witness, regardless of whether a court consid-
ers such statements reliable. Before Crawford, courts could
consider whether the statement contained adequate indicia
of reliability to assess the truthfulness of the evidence even
without the opportunity for cross-examination.10 And in State
v. Hughes,11 we considered whether a statement against penal
interest had particularized guarantees of trustworthiness.
In Hughes, we recognized that a statement made in response
to police interrogation generally does not have inherent guar-
antees of reliability and trustworthiness because the declarant
may be trying to curry favor with the authorities. So a court
must examine the totality of the circumstances surrounding the
making of the statement. We stated that the relevant factors are
whether the declarant was in police custody when the state-
ment was made, whether the declarant had a motive to mitigate
his own criminal liability, and whether the declarant made the
statement in response to leading questions.

 8
Id., 512 U.S. at 604.
 9
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).
10
See Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597
(1980), overruled, Crawford, supra note 9.
11
State v. Hughes, 244 Neb. 810, 510 N.W.2d 33 (1993).
 Nebraska Advance Sheets
1006 286 NEBRASKA REPORTS

As in Williamson, the declarant in Hughes implicated a third
party. An investigating officer testified he told the suspect that
he must be the shooter to scare him. In response, the suspect
named the defendant as the shooter. The State sought to intro-
duce this statement at trial. We held that the statement was
unreliable and that its admission violated the Confrontation
Clause. We concluded that the officer did not give the suspect
a choice to admit his crimes and cooperate. Instead, he could
only deny the officer’s accusations and had a motive to lie and
identify another person as the shooter, which motive could be
explored only through cross-examination.
But the circumstances here are distinct from the facts in
both Williamson and Hughes. Police officers arrested Weakly
because they knew he was the driver. But an officer told
Weakly early in the interrogation that investigators did not
believe he was the shooter. And Weakly made his statement
after the officer asked him to describe the events at the park,
not in response to leading questions or accusations. In stating
that Phillips shot Piper after Piper exposed a gun under his
shirt, Weakly was only explaining the events that preceded
Phillips’ shooting Piper.
So unlike the declarant in Williamson and Hughes, Weakly
did not attempt to shift blame to another participant. Nor did
the State offer him leniency for providing evidence against
Phillips. He had no motive to fabricate lies to minimize his
role in the homicide or to curry favor with authorities.12
Providing false information to the officers that conflicted with
other reports would have forfeited any opportunity he had
for leniency.
More important, Weakly made statements inculpating him-
self in Piper’s murder when he did not know what charges
would be brought against him because of his involvement in
the altercation. The State later charged Weakly with being an
accessory to a felony, but aiding and abetting first degree mur-
der or conspiracy were clearly on the table when Weakly made
these statements. As other courts have recognized, the test is
whether the statement would be probative of guilt in a trial

12
See Williamson, supra note 2.
 Nebraska Advance Sheets
STATE v. PHILLIPS 1007
Cite as 286 Neb. 974

against the declarant.13 And every statement that Weakly made
showed his involvement and knowledge of the crime.
Weakly told the officers that he drove Phillips and others
to a planned altercation. His statements showed that he knew
Phillips had brought a gun intending to fight. He knew before
Phillips left the vehicle that he was prepared to shoot some-
one and had done so. The record reflects that Weakly brought
baseball bats for his friends to take with them. A reasonable
person in Weakly’s position would not have falsely admitted
to participating in this crime knowing that his admission could
subject him to criminal liability for a murder.14
Nor were his statements neutral in the context of the charges
that the State could have filed; they would have been mate-
rial evidence of his guilt. That is, the State could have used
Weakly’s statement that Phillips shot Piper after Piper exposed
a gun to show Weakly’s participation in a planned attack, even
if he did not intend a murder. The prosecutor’s arguments dur-
ing the in camera hearing to determine whether Weakly could
invoke his privilege against self-incrimination show that more
serious charges could have been filed. She specifically argued
that if Weakly testified, there were facts in the case that could
subject him to further charges and that the State would use his
testimony against him if he took the stand. And under a de
novo review, I believe the record clearly shows that Weakly’s
statements implicated him in the charged crime as well as other
potential charges.
In sum, Williamson held that the statement against inter-
est exception does not apply when a coparticipant in a crime
confesses in a manner that primarily diminishes his own cul-
pability or shifts blame to another person. Weakly did neither.
Nor should Williamson be read as condoning the parsing of a
declarant’s statement to the point that the declarant’s crimi-
nal liability for the statement is lost. Williamson specifically

13
See, e.g., U.S. v. Jinadu, 98 F.3d 239 (6th Cir. 1996); U.S. v. Garcia, 897
F.2d 1413 (7th Cir. 1990); United States v. Garris, 616 F.2d 626 (2d Cir.
1980); United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978).
14
See, U.S. v. Smalls, 605 F.3d 765 (10th Cir. 2010); U.S. v. Wexler, 522 F.3d
194 (2d Cir. 2008); U.S. v. Tocco, 200 F.3d 401 (6th Cir. 2000).
 Nebraska Advance Sheets
1008 286 NEBRASKA REPORTS

directed courts to consider the context. It was not intended to
exclude relevant statements where the declarant had no motive
to lie. And this case illustrates that interpreting Williamson
too broadly allows the State to manipulate which relevant evi-
dence will come before the trier of fact.
Of course, under rule 804(2)(c), Weakly’s statements must
also be corroborated by circumstances indicating that they are
trustworthy. But because the trial court did not rule on this
issue, I would reverse, and remand for further proceedings.

In re I nterest ofMya C. and Sunday C.,
children under 18 years of age.
State of Nebraska, appellee,
v. Nyamal M., appellant.
___ N.W.2d ___

Filed December 6, 2013. No. S-12-811.

 1. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
 2. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
 3. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. Juvenile
court proceedings are special proceedings under Neb. Rev. Stat. § 25-1902
(Reissue 2008), and an order in a juvenile special proceeding is final and appeal-
able if it affects a parent’s substantial right to raise his or her child.
 4. Juvenile Courts: Parent and Child. Under Neb. Rev. Stat. § 43-288 (Reissue
2008), a juvenile court has discretion to require a parent, among other things, to
comply with a rehabilitation plan that will correct the conditions that led to the
adjudication and to adequately provide for his or her child’s needs.
 5. Juvenile Courts: Parental Rights: Appeal and Error. A juvenile court order
imposing a rehabilitation plan affects a parent’s substantial right in a special
proceeding and is appealable.
 6. Juvenile Courts: Final Orders: Time: Appeal and Error. A juvenile court
order that merely extends the time that the requirements of a previous order are in
effect does not affect a substantial right or extend the time in which a party may
appeal the original order.
 7. Juvenile Courts: Parental Rights: Appeal and Error. A juvenile court order
that adopts a case plan with a material change in the conditions for reunification
with a parent’s child is a crucial step in proceedings that could possibly lead to
the termination of parental rights. Such orders affect a parent’s substantial right
in a special proceeding and are appealable.