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State v. Williams

Court of Appeals of Nebraska

October 30, 2018

State of Nebraska, Appellee,
Andrew D. Williams, Appellant.

         1. Criminal Law: Pretrial Procedure. Discovery in a criminal case is generally controlled by either a statute or court rule.

         2. __:__. Neb. Rev. Stat. §§ 29-1912 and 29-1913 (Reissue 2016) set forth specific categories of information possessed by the State which are discoverable by a defendant.

         3. __:__. Neb. Rev. Stat. § 29-1916 (Reissue 2016) provides only reciprocal discovery to the State as to orders for discovery entered pursuant to Neb. Rev. Stat. §§ 29-1912 and 29-1913 (Reissue 2016).

         4. __: __ . A motion for deposition is filed pursuant to Neb. Rev. Stat. § 29-1917 (Reissue 2016). However, unlike general discovery, a motion for deposition can be filed by either party to a criminal case.

         5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.

         6. Rules of Evidence: Hearsay: Proof. Hearsay is an out-of-court statement made by a human declarant that is offered in evidence to prove the truth of the matter asserted.

         7. Rules of Evidence: Hearsay. Generally, hearsay is inadmissible except as provided by a recognized exception to the rule against hearsay.

         8. Trial: Evidence: Testimony: Proof. Demonstrative exhibits are admissible if they supplement a witness' spoken description of the transpired event, clarify some issue in the case, and are more probative than prejudicial.

         9. Trial: Evidence. Demonstrative exhibits are inadmissible when they do not illustrate or make clearer some issue in the case.

         [26 Neb.App. 460] 10. Trial: Judges: Juries: Evidence. A trial judge may exercise his or her broad discretion to allow or disallow the use of demonstrative exhibits during jury deliberations.

         11. Convictions: Evidence: Appeal and Error. Even if admitted in error, where the evidence is cumulative and there is other competent evidence to support the conviction, the improper admission or exclusion of evidence is harmless beyond a reasonable doubt.

         12. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.

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

         14. Hearsay. If an out-of-court statement is not offered for the purpose of proving the truth of the facts asserted, it is not hearsay.

         15. Trial: Hearsay. A trial court should identify the specific nonhearsay purpose for which the making of a statement is relevant and probative.

         16. Trial: Appeal and Error. An error is harmless when cumulative of other properly admitted evidence.

         17. Trial: Jurors. Retention or rejection of a juror is a matter of discretion with the trial court.

         18. Trial: Motions to Dismiss: Jurors: Appeal and Error. The standard of review in a case involving a motion to dismiss a juror is whether the trial court abused its discretion.

         19. Juror Qualifications. Through the use of peremptory challenges or challenges for cause, parties can secure an impartial jury and avoid including disqualified persons.

         20. __ . Jurors who form or express opinions regarding an accused's guilt based on witness accounts of the crime must be excused for cause. However, jurors whose source of information is from newspaper reports, hearsay, or rumor can be retained if the court is satisfied that such juror can render an impartial verdict based upon the law and the evidence adduced.

         21. Jurors: Appeal and Error. The erroneous overruling of a challenge for cause will not warrant reversal unless it is shown on appeal that an objectionable juror was forced upon the challenging party and sat upon the jury after the party exhausted his or her peremptory challenges.

         22. Motions to Strike: Jurors: Appeal and Error. Appellate courts ought to defer to the trial court's judgment on a motion to strike for cause, because trial courts are in the best position to assess the venire's demeanor.

         [26 Neb.App. 461] 23. Jurors: Proof: Appeal and Error. The complaining party must prove it used all its peremptory challenges and would have used a challenge to remove other biased jurors if not for the court's error.

         24. 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 protection is a question of law that an appellate court reviews independently of the trial court's determination.

         25. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights: Appeal and Error. In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an appellate court applies a two-part standard of review. With regard to historical facts, an appellate court reviews the trial court's findings for clear error. Whether those facts suffice to meet the constitutional standards, however, is a question of law which an appellate court reviews independently of the trial court's determination.

         26. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.

         27. Motions to Suppress: Courts: Records. District courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress.

         28. 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.

         29. Arrests: Search and Seizure: Probable Cause. An arrest constitutes a seizure that must be justified by probable cause to believe that a suspect has committed or is committing a crime.

         30. Criminal Law: Warrantless Searches: Probable Cause. Probable cause to support a warrantless arrest exists only if law enforcement has knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, that would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.

         [26 Neb.App. 462] 31. Probable Cause: Appeal and Error. An appellate court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.

         32. Miranda Rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), adopted a set of safeguards to protect suspects during modern custodial interrogations.

         33. Constitutional Law: Arrests: Miranda Rights: Words and Phrases. A person is in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when formally arrested or otherwise restrained so as to be unable to move freely. It is undisputed that a person who is handcuffed and placed in a police cruiser's back seat is in custody.

         34. Miranda Rights: Police Officers and Sheriffs: Words and Phrases. An interrogation includes express questioning, its functional equivalent, and any police conduct that police officers ought to know is reasonably likely to elicit incriminating responses. An arrestee's voluntary statements, which are not the product of interrogation, are not protected under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

         35. Miranda Rights: Self-incrimination. When a custodial interrogation occurs in the absence of Miranda-sty\e procedural safeguards, an arrestee's self-incriminating statements are inadmissible in court.

         36. Criminal Law: Confessions: Appeal and Error. In determining whether the State has shown the admissibility of custodial statements by the requisite degree of proof, an appellate court will accept the factual determination and credibility choices made by the trial judge unless they are clearly erroneous and, in doing so, will look to the totality of the circumstances.

         37. Trial: Evidence: Juries: Appeal and Error. Erroneous admission of evidence is a harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact. The proper inquiry is whether the trier of fact's verdict was certainly not attributable to the error.

         38. Miranda Rights: Arrests: Self-incrimination. Courts must consider whether a Miranda warning, when given after an arrestee has already made incriminating statements, is sufficient to advise and convey that the arrestee may choose to stop talking even though he or she has spoken before the warning was administered.

         39. Miranda Rights. The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function effectively as Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires.

         [26 Neb.App. 463] 40. Miranda Rights: Evidence. To determine whether a midinterrogation Miranda warning is sufficient to warrant the admission of post-Miranda statements, courts should consider five factors: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first.

         41. Miranda Rights. In instances of midinterrogation Miranda warnings, violations must include an inculpatory prewarning statement that somehow overlaps with statements made in the postwarning interrogation.

          Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge. Affirmed.

          Bell Island, of Island Law Office, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

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

          Arterburn, Judge.


         Andrew D. Williams appeals from his convictions after a jury trial in the district court for Douglas County of two counts of driving under the influence causing serious bodily injury. On appeal, he argues the court erred in rulings regarding evidentiary issues, excusing a prospective juror for cause, and denying pretrial motions to suppress. For the reasons set forth below, we affirm.


         1. Accident On the evening of February 26, 2016, Williams' pickup truck collided with a car near the intersection of 5 2d and Parker Streets in Omaha, Nebraska. Kyle Phillips, Erin Sorenson, and Nathaniel Wissink were in the car when it was hit.

         [26 Neb.App. 464] Phillips, who testified that he drives through the area on a near-daily basis, described 52d and Parker Streets as a T-intersection in which a driver on Parker Street faces uphill. From this perspective, a driver has a clear line of sight to the right, or north, but when looking to the left, or south, on 52d Street, can see for only a block or block and a half as a hill crests when 52d Street intersects near Decatur Street. Accordingly, Phillips testified that oncoming cars traveling on 52d Street from the south would not be visible from the intersection in question until the hill's crest.

         On February 26, 2016, Phillips was accompanied by Wissink in the front passenger seat and Sorenson in the rear passenger seat as he drove westbound on Parker Street up the hill. Phillips testified that it was dark at about 6:45 or 7 p.m. when he stopped at the stop sign at the intersection of 52d and Parker Streets. After seeing no cars approaching from the left or the right, he pulled into the intersection and began to turn left when his car was "struck just... so fast that there was no time to comprehend anything" from the left while approximately halfway in the intersection.

         During trial, the State elicited testimony from a number of neighbors who heard the accident and quickly arrived at the scene. Andrew Hale was sitting in his home on 52d Street and heard a vehicle approaching from the south at "what [he] thought would be a high rate of speed." The vehicle accelerated without stopping, sounding as if "somebody had pushed on the gas pedal." Hale testified that the vehicle continued accelerating until he heard a crash a few seconds after it passed his house. At no point did Hale hear the vehicle ...

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