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State v. Vandever

Supreme Court of Nebraska

April 4, 2014

STATE OF NEBRASKA, APPELLEE,
v.
WESLEY S. VANDEVER, APPELLANT

Page 784

Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU, Judge.

Todd D. Morten, of Island & Huff, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

HEAVICAN, C.J., CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. WRIGHT, J., participating on briefs.

OPINION

Page 785

Miller-Lerman, J.

NATURE OF CASE

Wesley S. Vandever appeals his conviction in the district court for Scotts Bluff County for possession of a controlled substance, methamphetamine. Vandever claims that the court erred when, during deliberations, it granted the jury's request to rehear a recording of an investigator's interview of Vandever. We find no error and, accordingly, affirm Vandever's conviction and sentence.

[287 Neb. 808] STATEMENT OF FACTS

In April 2012, drug task force investigators executed a search warrant at a house in Scottsbluff, Nebraska. Four individuals, including Vandever, were inside the house at the time of the search. Investigators found Vandever and two of the others sleeping on the floor of a room in the basement. They also found bags of methamphetamine and other items, including a " meth" pipe and a marijuana pipe, located near where Vandever was sleeping. Vandever was arrested, and he was taken to the Scottsbluff Police Department where he was interviewed by one of the investigators who had conducted the search.

The investigator who interviewed Vandever testified at trial regarding the search and the interview. In connection with the investigator's testimony, the court admitted into evidence a compact disc containing an edited audio recording of the interview. Vandever did not object to admission of the recording, and the recording, which was approximately 8 minutes in length, was played for the jury. In the recorded interview, the investigator questioned Vandever regarding, inter alia, ownership of items found near him in the basement room. Vandever admitted that the marijuana pipe was his but denied that the " meth" pipe and the bags of methamphetamine were his. The investigator then asked Vandever, " Did you use last night? . . . Did you smoke a little?" Vandever replied, " Not a lot. Because obviously I was sleeping." Vandever continued that he generally did not use a lot and that he was working on getting clean.

During deliberations, the jury sent a written note to the court stating, " Can we please listen to the 8 minute . . . interview again?" The note was signed by the presiding juror. The court wrote a response on the note stating, " I will allow to hear

Page 786

Exh 16 (C.D of the interview) only one more time." After the judge's signature, it stated, " P.S The bailiff will be present during the playing of the C.D. Do not resume your discussions until you return to jury room." In a journal entry, the court stated that it had " honored the jury's written request to rehear Exhibit 16 ([the investigator's] interview of [Vandever]) over Defense Counsel's objection."

[287 Neb. 809] The jury thereafter returned a verdict finding Vandever guilty of possession of methamphetamine. The court later sentenced Vandever to ...


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