Pleadings. Issues regarding the grant or
denial of a plea in bar are questions of law.
Judgments: Appeal and Error. On a question
of law, an appellate court reaches a conclusion independent
of the court below.
Motions for Mistrial: Pleadings: Prosecuting
Attorneys: Intent: Appeal and Error. While the
denial of a plea in bar generally involves a question of law,
an appellate court reviews under a clearly erroneous standard
a finding concerning the presence or absence of prosecutorial
intent to provoke the defendant into moving for a mistrial.
Pretrial Procedure: Appeal and Error. Trial
courts have broad discretion with respect to sanctions
involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of
Double Jeopardy: Motions for Mistrial. It is
the general rule that where a court grants a mistrial upon a
defendant's motion, the Double Jeopardy Clause does not
bar a retrial.
Motions for Mistrial: Prosecuting Attorneys: Intent:
Proof. It is the defendant's burden to prove
that the prosecuting attorney engaged in misconduct intended
to provoke a mistrial, and the trial court's finding
regarding whether the prosecuting attorney intended to cause
a mistrial is a finding of fact.
___:___:___: ___ . Factors that a court may consider in
determining whether the prosecutor intended to provoke the
defendant into moving for a mistrial include the following:
(1) whether there was a sequence of overreaching or error
prior to the errors resulting in the mistrial; (2) whether
the prosecutor resisted the motion for mistrial; (3) whether
the prosecutor testified, and the court below found, that
there was no intent to cause a mistrial; (4) the timing of
the error; [24 Neb.App. 921] (5) whether the record contains
any indication that the prosecutor believed the defendant
would be acquitted; (6) whether a second trial would be
desirable for the government; and (7) whether the prosecutor
proffered some plausible justification for his or her
Records: Appeal and Error. It is incumbent
upon an appellant to supply a record which supports his or
her appeal; absent such a record, as a general rule, the
decision of the lower court as to those errors is to be
from the District Court for Sarpy County: David K. Arterburn,
P. Strigenz, Sarpy County Public Defender, and Colleen M.
Hassett for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
Chief Judge, and Pirtle and Bishop, Judges.