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State v. Williams

Court of Appeals of Nebraska

August 8, 2017

State of Nebraska, Appellee,
v.
Barbara J. Williams, Appellant.

         1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions of law.

         2. Judgments: Appeal and Error. On a question of law, an appellate court reaches a conclusion independent of the court below.

         3. 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.

         4. 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 discretion.

         5. 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.

         6. 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.

         7. ___:___:___: ___ . 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 actions.

         8. 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 affirmed.

         Appeal from the District Court for Sarpy County: David K. Arterburn, Judge. Affirmed.

          Thomas P. Strigenz, Sarpy County Public Defender, and Colleen M. Hassett for appellant.

          Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.

          Moore, Chief Judge, and Pirtle and Bishop, Judges.

          ...


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