S-22-0574 State of Nebraska (Appellee) v. Mabior M. Mabior (Appellant)
Appeal from the District Court for Douglas County, Judge Shelly R. Stratman
Attorneys: Thomas C. Riley (Douglas County Public Defender for Appellant) and Stacy M. Foust (Asst. Attorney General for Appellee).
Criminal: First-Degree Murder and Use of a Weapon to Commit a Felony
Proceedings below: A jury convicted Appellant of two counts of First-Degree Murder and two counts of Use of a Weapon (Firearm) to Commit a Felony for which he was sentenced to life in prison for each First-Degree Murder conviction and fifteen (15) to thirty (30) years in prison for each Use of a Weapon to Commit a Felony. All sentences are to run consecutively. Life imprisonment cases are automatic and direct appeals to the Nebraska Supreme Court.
Issues: Appellant makes the following assignments of error: 1) The prosecutor committed misconduct in final argument by implying that Mabior was responsible for Thok being shot in Texas; 2) Trial counsel provided ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3 and 11 of the Nebraska Constitution by failing to move for a mistrial based on the prosecutorial misconduct as outlined in Argument I herein; 3) Trial counsel provided ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3 and 11 of the Nebraska Constitution by failing to object to request a hearing pursuant to State v. Rocha and exclude statements made by police officers during their interrogation of Mabior as irrelevant, improper opinion evidence, not probative for the purposes of providing context to Mabior’s statements and violates Neb. Rev. Stat. § 27-403; 4) Trial counsel provided ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3 and 11 of the Nebraska Constitution by failing to object to testimony of Detective Young that contained out of court statements attributed to Abuk Mathok asserting that Mabior was wearing a red jacket or hoodie on the night of the shooting. Said testimony constitutes inadmissible hearsay and violates the Confrontation Clauses of both the United States and Nebraska Constitutions; 5) Trial counsel provided ineffective assistance of counsel in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3, 7, and 11 of the Nebraska Constitution by failing to file a Motion to Suppress Evidence, an extended magazine for a 9 MM firearm, seized by police from a vehicle in which he was a passenger; 6) The Appellant’s statements provided to law enforcement in the initial interrogation were fruit of the illegality, the unlawful seizure of the Appellant on March 27, and therefore trial counsel was ineffective in failing to litigate a Motion to Suppress as to this constitutional violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3, 7, and 11 of the Nebraska Constitution; 7) The Appellant’s convictions should be reversed by this Court as it was plain error for the prosecution to align itself with law enforcement witnesses as the same body by repeatedly vouching for the credibility of and the investigation set forth by law enforcement, a fundamental denial of Mabior’s right to a fair trial as guaranteed by the Due Process clauses of the U.S. and Nebraska Constitutions; 8) The trial attorney for Mabior provided ineffective assistance of counsel in failing to object to the prosecution’s repeated vouching for the credibility of law enforcement witnesses, fundamentally indistinguishable from the prosecution, a deficient performance as such was a denial of Mabior’s rights as guaranteed by the Due process clauses, thereby warranting reversal of his convictions; 9) Trial counsel provided ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3 and 11 of the Nebraska Constitution by failing to object to testimony of Detective Young that contained out of court statements attributed to Dilang Dat asserting that he was present at the scene of the shooting and left in Nyamal Both’s black Honda Civic. Dang refused to tell Young who else got into the Honda Civic but asserted that there was only one shooter and that the shooter went through the pockets of the victims. Said testimony constitutes inadmissible hearsay and violated the Confrontation Clauses of both the United States and Nebraska Constitutions; 10) Trial counsel provided ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3 and 11 of the Nebraska Constitution by failing to object to a series of questions propounded by the prosecutor during direct examination of Nyamar Both. Both testified that she was afraid to cooperate with police and testify because she feared being a target of retaliation if she cooperated. These statements are inadmissible because they are irrelevant and if found to be relevant should be excluded by § 27-403 because their probative value is outweighed by the unfair prejudice to Mabior; 11) Trial counsel provided ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3 and 11 of the Nebraska Constitution by failing to object to the introduction of text messages between Thok and Deng a short time prior to their deaths. The statements are inadmissible hearsay; 12) Trial counsel provided ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3 and 11 of the Nebraska Constitution by failing to file a Motion to Suppress Mabior’s statement to police. During the interrogation Mabior informed police that he did not want to talk further and police failed to honor that request and continued the interrogation; 13) Trial counsel provided ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3 and 11 of the Nebraska Constitution by failing to object to testimony of State’s witnesses that contained out of court statements implicating Mabior as being involved in a prior shooting of Thok. Said testimony constitutes inadmissible hearing, is irrelevant, and violated the Confrontation Clauses of both the United States and Nebraska Constitutions; 14) Any and all references to Thok being shot in Texas should have been excluded at trial because they are not relevant and they should have been excluded by § 27-404 and § 27-403. The State could not prove by clear and convincing evidence that Mabior committed that act. The admission of this evidence is plain error on the record; 15) Trial counsel provided ineffective assistance of counsel in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 3 and 11 of the Nebraska Constitution by failing to file a Motion to Suppress Evidence, specifically a photo of a purchase receipt for an extended magazine for a 9MM firearm, obtained from a search of Mabior’s cell phone. The cell phone was seized pursuant to a search of a Dodge Charged towed from the scene of the homicide. The search violated the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I Sections 3 and 7 of the Nebraska Constitution; and 16) Trial counsel was ineffective in its performance in failing to object per §§ 27-1002, 27-701, and 27-602 to law enforcement officers’ interpretation of the surveillance video, Exhibit 150.