Criminal Law: Pretrial Procedure. Discovery in a criminal
case is generally controlled by either a statute or court
__:__. 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.
__:__. 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).
__ . 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.
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.
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.
Rules of Evidence: Hearsay. Generally, hearsay is
inadmissible except as provided by a recognized exception to
the rule against hearsay.
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.
Trial: Evidence. Demonstrative exhibits are inadmissible when
they do not illustrate or make clearer some issue in the
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
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
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
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.
Hearsay. If an out-of-court statement is not offered for the
purpose of proving the truth of the facts asserted, it is not
Trial: Hearsay. A trial court should identify the specific
nonhearsay purpose for which the making of a statement is
relevant and probative.
Trial: Appeal and Error. An error is harmless when cumulative
of other properly admitted evidence.
Trial: Jurors. Retention or rejection of a juror is a matter
of discretion with the trial court.
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.
Juror Qualifications. Through the use of peremptory
challenges or challenges for cause, parties can secure an
impartial jury and avoid including disqualified persons.
. 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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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).
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.
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
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
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.
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.
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.
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.
from the District Court for Douglas County: Duane C.
Dougherty, Judge. Affirmed.
Island, of Island Law Office, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Chief Judge, and Bishop and Arterburn, Judges.
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.
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
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.
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.
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 ...