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State v. Simmons

Court of Appeals of Nebraska

December 8, 2015

STATE OF NEBRASKA, APPELLEE,
v.
BRADLEY A. SIMMONS, APPELLANT

Page 294

Appeal from the District Court for Johnson County: DANIEL E. BRYAN, JR., Judge.

Timothy W. Nelsen, Johnson County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and George R. Love, for appellee.

PIRTLE, RIEDMANN, and BISHOP, Judges.

OPINION

Page 295

[23 Neb.App. 463] Pirtle, Judge.

INTRODUCTION

After a bench trial, Bradley A. Simmons was found guilty of one count of assault on an officer in the second degree, a Class II felony. He appeals his conviction, asserting that certain evidence should not have been introduced and that the pepper spray used during the altercation should not have been considered a dangerous instrument within the meaning of the Nebraska Revised Statutes. For the reasons that follow, we affirm.

BACKGROUND

Simmons, an inmate at Tecumseh State Correctional Institution (TSCI), was charged by information with one count of assault on an officer in the second degree. The information alleged that on February 6, 2013, he caused bodily injury to an employee of the Department of Correctional Services while the employee was engaged in the performance of his official duties. Specifically, he was charged with causing bodily injury to caseworker David Daire with pepper spray. The incident took place at TSCI.

Simmons filed a motion in limine on October 6, 2014. Prior to Simmons' motion, the State notified Simmons' counsel that the department no longer had possession of the physical evidence of the incident, because the pepper spray and the surveillance video depicting the incident were destroyed prior to the case's being referred to the Johnson County Attorney for prosecution. Simmons' motion requested that the State not be allowed to present testimony from the department's employees, because they had " intentionally destroyed evidence which may be mitigating to [Simmons] through their own actions and deeds."

[23 Neb.App. 464] On the date of the hearing on Simmons' motion in limine, the parties stipulated that the events resulting in the criminal filing in this case took place on February 6, 2013, and that the department did not notify the county attorney of the case until February 2014. They stipulated that the events were recorded, but that the department routinely destroys all video at least 6 months from the date it is recorded. The joint stipulation noted Simmons believed the video contained exculpatory evidence that would help his defense.

The State asserted the video evidence was destroyed as part of the normal video maintenance routine. The State also asserted the evidence was not exculpatory nor was it unavailable due to bad faith. After the hearing, the district court denied the motion in limine. The court reasoned that the State disclosed the lack of the video without any formal discovery order and that the State did not act in bad faith in failing to ...


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