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State v. Quezada

Court of Appeals of Nebraska

June 4, 2013

STATE OF NEBRASKA, APPELLEE,
v.
FLLIBERTO QUEZADA, APPELLANT.

1. Trial: Expert Witnesses. The right of an indigent defendant to the appointment of an expert witness at State expense generally rests in the discretion of the trial court.

2. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal.

3. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

4. Drunk Driving: Blood, Breath, and Urine Tests: Proof: Expert Witnesses: Rebuttal Evidence. A test made in compliance with the statutory scheme, and its corresponding regulations, is sufficient to make a prima facie case on the issue of breath alcohol concentration. That scheme does not require evidence as to any margin of error for the testing device. And the trial court is not required to accept as credible any expert testimony called by the defendant to rebut the State's prima facie case.

5. Drunk Driving: Blood, Breath, and Urine Tests: Proof. Neb. Rev. Stat. § 60-6, 201 (Reissue 2010) requires that a chemical test be performed in accordance with the procedures approved by the Department of Health and Human Services Regulation and Licensure and by an individual possessing a valid permit issued by that department for such purpose. There are four foundational elements the State must establish for admissibility of a breath test in a prosecution for driving under the influence: (1) that the testing device was working properly at the time of the testing, (2) that the person administering the test was qualified and held a valid permit, (3) that the test was properly conducted under the methods stated by the Department of Health and Human Services Regulation and Licensure, and (4) that all other statutes were satisfied. A breath test that comports with the foregoing listed requirements makes a prima facie case.

6. Expert Witnesses. If proposed expert testimony is fundamentally flawed by the expert's own admission, it is not an abuse of discretion for the trial court to refuse to appoint the expert under Neb. Rev. Stat. § 27-706 (Reissue 2008) when there is no showing that this shortcoming in the expert's proposed testimony has been remedied.

7. Expert Witnesses: Evidence: Affidavits. A defendant must provide evidence to support a motion to appoint an expert witness, and this evidence may consist of affidavits.

8. Effectiveness of Counsel: Drunk Driving: Expert Witnesses. In order to ensure that the right to effective assistance of counsel does not become a hollow right, it is the duty of the State not only to provide an indigent defendant [20 Neb.App. 837] with an attorney, but also to provide the lawyer with the appropriate tools and services necessary to provide a proper, competent, and complete defense. An indigent defendant being prosecuted for driving while under the influence may, in certain circumstances, be entitled to the appointment of an expert witness at the State's expense.

9. Expert Witnesses. An expert need not be supplied every time a request is made by an indigent defendant, nor must the court provide defense counsel with equipment for a "fishing expedition." There must be some showing by defense counsel that the expert is necessary for an adequate defense.

10. __. There must be some threshold showing of necessity for expert assistance before a trial court may grant a defendant's request therefor, such as why the requested expert testimony was necessary, how such testimony would likely benefit the defense, or why a vigorous cross-examination of the State's witnesses would not achieve the same result.

11. Effectiveness of Counsel: Witnesses. When the record shows that the State's witnesses were thoroughly cross-examined consistent with the defense theory, there was meaningful adversarial testing of the prosecution's case.

12. Constitutional Law: Effectiveness of Counsel: Proof. The U.S. Supreme Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent or prevented from assisting the accused during a critical stage of the proceeding. Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.

Appeal from the District Court for Douglas County: W. MARK ASHFORD, JUDGE.

Sarah M. Mooney, of Mooney Law Office, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

SIEVERS, PIRTLE, AND RIEDMANN, JUDGES.

SIEVERS, JUDGE.

INTRODUCTION

Filiberto Quezada appeals from his conviction and sentence for third-offense aggravated driving under the influence (DUI), a Class IIIA felony due to his .174 breath alcohol content, in violation of Neb. Rev. Stat. § 60-6, 196 (Reissue 2010). He claims that the district court erred in denying his motion to hire an expert witness at public expense to testify to the margin of error inherent in the DataMaster breath testing device [20 Neb.App. 838] which formed the basis of his conviction. Based on the analysis below, we affirm the conviction.

FACTUAL BACKGROUND

Roger Ites testified that on August 2, 2011, at approximately 10 p.m., he was driving his motorcycle eastbound on Q Street in Omaha, Nebraska, when he noticed a vehicle backing out onto Q Street approximately half a block in front of him that did not have its lights on. In an effort to avoid the vehicle, Ites moved from the right-hand lane to the left-hand lane. The driver of the vehicle suddenly attempted to make a U-turn to drive west on Q Street. Ites braked heavily but struck the vehicle with the front end of his motorcycle, ...


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