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State v. Podrazo

Court of Appeals of Nebraska

December 10, 2013

State of Nebraska, Appellee,
Nicholas J. Podrazo, Appellant.

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Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge. Affirmed.

Denise E. Frost and Clarence E. Mock, of Johnson & Mock, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

Syllabus by the Court

1. Criminal Law: Trial: Pretrial Procedure: Motions to Suppress: Appeal and Error. In a criminal trial, after a pretrial hearing and order denying a motion to suppress, the defendant must object at trial to the admission of evidence sought to be suppressed to preserve an appellate question concerning admissibility of that evidence.

2. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. A failure to object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and that party will not be heard to complain of the alleged error on appeal.

3. Trial: Evidence: Stipulations: Waiver. A concession or stipulation as to a fact made for the purpose of trial has the force and effect of an established fact binding on the party making the same, as well as on the court, unless the court in its reasonable discretion allows the concession to be later withdrawn, explained, or modified if it appears to have been made by improvidence or mistake.

4. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

5. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government. These constitutional provisions do not protect citizens from all governmental intrusion, but only from unreasonable intrusions.

6. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, [21 Neb.App. 490] subject only to a few specifically established and well-delineated exceptions, which must be strictly confined by their justifications.

7. Warrantless Searches. The warrantless search exceptions recognized by Nebraska courts include searches undertaken with consent, searches justified by probable cause, searches under exigent circumstances, inventory searches, searches of evidence in plain view, and searches incident to a valid arrest.

8. Warrantless Searches: Search and Seizure: Proof. In the case of a search and seizure conducted without a warrant, the State has the burden of showing the applicability of one or more of the exceptions to the warrant requirement.

9. Warrantless Searches: Search and Seizure: Motor Vehicles: Police Officers and Sheriffs. The warrantless seizure of a vehicle is lawful when the officers could have immediately searched the vehicle without a warrant.

10. Warrantless Searches: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. Whether a warrantless search of a vehicle could have been conducted is determined by whether the vehicle was readily mobile and the officers had probable cause to believe the vehicle contained contraband or evidence of a crime.

11. Probable Cause: Words and Phrases. Probable cause escapes precise

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definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.

12. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would warrant a person of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.

13. Probable Cause: Appeal and Error. Appellate courts determine probable cause by an objective standard of reasonableness, given the known facts and circumstances.

14. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility.

15. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.

16. Constitutional Law: Criminal Law: Witnesses. The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor.

17. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy and prejudice, and a trial court's decision regarding them will not be reversed absent an abuse of discretion.

18. Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

19. Rules of Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy and admissibility under [21 Neb.App. 491]Neb.Rev.Stat. § 27-406 (Reissue 2008), and as a result, the trial court's decision will not be reversed absent an abuse of discretion.

20. Trial: Evidence. The precise contours of how frequently and consistently a behavior must occur to rise to the level of habit cannot be easily defined or formulated, and admissibility depends on the trial judge's evaluation of the particular facts of the case.

21. Trial: Evidence. Evidence of a single incident, even if it is true, is an insufficient showing of a routine or habit.

22. Pretrial Procedure: Appeal and Error. A trial court has broad discretion in granting discovery requests and errs only when it abuses its discretion.

23. Physician and Patient: Evidence. Generally, confidential communications made by a patient to a physician or professional counselor for the purposes of diagnosis and treatment are privileged.

24. Physician and Patient: Evidence: Witnesses: Proof. Before the testimony of a witness is excluded under Neb.Rev.Stat. § 27-504 (Reissue 2008), the defendant must make a showing that the failure to produce the privileged information is likely to impair the defendant's ability to effectively cross-examine the witness claiming the privilege. If the defendant succeeds in making such a showing, the court may then afford the State an

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opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the witness does not consent, the court may be obliged to strike the testimony of the witness.

25. Trial: Expert Witnesses. The trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion.

26. Trial: Courts. A trial court has broad discretion in determining how to perform its gatekeeper function.

27. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.

28. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

29. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court.

30. Jury Instructions. A trial court is not obligated to instruct the jury on matters which are not supported by evidence in the record.

31. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

32. Jury Trials: Affidavits: Appeal and Error. Errors predicated on occurrences during the course of voir dire examination cannot be shown by affidavit.

33. Jury Trials: Records: Appeal and Error. An appellate court will not undertake to resolve disputes about what is claimed to have happened, when a record of the voir dire examination could have been made.

[21 Neb.App. 492] 34. Motions for Mistrial: Appeal and Error. An appellate court will not disturb a trial court's decision whether to grant a motion for mistrial unless the court has abused its discretion.

35. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

36. Criminal Law: Jury Misconduct: Proof. A criminal defendant claiming jury misconduct bears the burden of proving, by a preponderance of the evidence, (1) the existence of jury misconduct and (2) that such misconduct was prejudicial to the extent that the defendant was denied a fair trial.

37. Criminal Law: Juror Misconduct: Presumptions: Proof. In a criminal case, when misconduct involves a juror and a nonjuror, it gives rise to a rebuttable presumption of prejudice to the defendant which the State has the burden to overcome.

38. Witnesses: Juror Misconduct: Appeal and Error. An appellate court reviews the trial court's determinations of witness credibility and historical fact for clear error and reviews de novo the trial court's ultimate determination whether the

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defendant was prejudiced by juror misconduct.

39. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial as a whole.

40. 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.

41. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion.

Riedmann, Judge.


Nicholas J. Podrazo appeals from his conviction in the district court for Douglas County for the first degree sexual assault and attempted first degree assault of A.T. Because we find no merit to Podrazo's arguments on appeal, we affirm.

[21 Neb.App. 493] II. BACKGROUND


The events surrounding this case began on December 23, 2010. At that time, A.T. was living near 22d and Maple Streets in Omaha, Nebraska (Maple Street residence), with her friends Richard Gregory, Ellen Mruz, Brett Smith, and Ashley Forsman. A.T., Mruz, Smith, and Forsman began drinking alcohol sometime in the afternoon on December 23. Around 7 p.m., A.T. and Forsman left to have dinner with A.T.'s mother. While they were gone, Podrazo and two other men arrived at the Maple Street residence; Podrazo brought a bottle of rum and a box of " whip-it" canisters with him. When A.T. and Forsman returned from dinner, they joined everyone in drinking rum, " doing whip-its," and smoking marijuana.

Around 9:30 p.m., the partygoers noticed that A.T. and Podrazo were missing. They searched the inside and outside of the residence but could not find them. Mruz called Podrazo's cell phone numerous times, and when he finally answered, he told her that he was " just driving around." When Mruz asked to speak to A.T., the cell phone disconnected. Mruz and a couple of others noticed that A.T.'s car and keys were still at the house, but that Podrazo's white Chevrolet (Chevy) Blazer was missing. They drove around the neighborhood in A.T.'s car looking for her but were unable to find her.

Around 11:15 p.m. that night, a man and his fiance were returning to their home near 73d and Pratt Streets in Omaha (Pratt Street residence), when they noticed a white Chevy Blazer parked in the street near their driveway. The man attempted to look in the windows of the Blazer, but they were darkly tinted and fogged over, so he could not see anything inside except some clothing on the front seat. He went inside his house, and when he looked out the window 5 or 10 minutes later, the Blazer was gone. Shortly after that, passersby discovered a nude, unresponsive female lying on the side of the road near

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where the Blazer had been parked and called the 911 emergency dispatch service. An ambulance arrived a few minutes later and transported the female, ...

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