STANDARDS OF REVIEW AND
PROPOSITIONS OF LAW
CRIMINAL
ADMISSION OF EVIDENCE:
In proceedings where the rules of evidence apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules, and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003), State v. Hurbenca, 266 Neb. 853 (2003).
The admissibility of evidence is reviewed for an abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003), State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003), State v. Brouillette, 265 Neb. 214, 655 N.W.2d (2003), State v. Tyma, 264 Neb. 712, 651 N.W.2d 582 (2002).
Because exercise of judicial discretion is implicit in evidence rule governing relevancy, it is within discretion of trial court to determine relevancy, and trial court's decision will not be reversed absent abuse of that discretion. Neb. Rev. Stat. § 27-401 (Reissue 1995). State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003), State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003), State v. Miner, 265 Neb. 778, 659 N.W.2d 331 (2003).
An error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).
Erroneous admission of evidence in a criminal trial is not prejudicial if it can be said that the error was harmless beyond a reasonable doubt. State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003); State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003); State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002), supp. op. at 264 Neb. 654, 650 N.W.2d 481 (2002); State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000). A reversal is warranted if the record shows that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2001); State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000).
In a jury trial of a criminal case, whether an error in admitting or excluding evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt. State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003); State v. Brouillate, 265 Neb. 214, 655 876 (2003); State v. Canady,263 Neb. 552, 641 N.W.2d 43 (2002); State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2002); State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000).
Where the admission of 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. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001); State v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000); State v. Kinser, 259 Neb. 251, 609 N.W.2d 322 (2000).
Admission or exclusion of photographs as evidence is within the discretion of a trial court, whose evidential ruling on the photographs will be upheld on appeal unless the trial court abused its discretion. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).
Trial court's ruling excluding relevant evidence because its probative value is substantially outweighed by danger of unfair prejudice or confusion of the issues will be upheld on appeal unless ruling is abuse of discretion. Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995). State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002); State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
Admission of photographs into evidence rests largely within the discretion of a trial court, which must determine their relevancy and weigh their probative value against their possible prejudicial effect. Neb. Rev. Stat. § 27-403 (Reissue 1995). State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Clark, 255 Neb. 1006, 588 N.W.2d 184(1999); State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997).
Ruling pursuant to rule requiring probative value of evidence to be weighed against danger of unfair prejudice, for exclusion of relevant evidence, will be upheld on appeal unless ruling is abuse of discretion. Neb. Rev. Stat. § 27-403. State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002); State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001); State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000).
In the context of rule excluding evidence whose unfair prejudice substantially outweighs probative value, "unfair prejudice" means undue tendency to suggest decision on improper basis. Neb. Rev. Stat. § 27-403. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003); State v. Miner, 265 Neb. 778, 659 331 N.W.2d (2003); State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
Erroneous admission of evidence in criminal trial is not prejudicial if it can be said that error was harmless beyond reasonable doubt. State v. Reiger, 260 Neb. 519, 618 N.W.2d 619 (2000); State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998); State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).
AIDING AND ABETTING:
The common-law distinction between a principal and an aider and abettor has been abolished; under the provisions of Neb. Rev. Stat. § 28-206 (Reissue 1995), one who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if one were the principal offender. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995); State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995).
When a crime requires the existence of a particular intent, an alleged aider or abettor can be held criminally liable as a principal if it is shown that the aider and abettor knew that the perpetrator of the act possessed the required intent or that the aider and abettor himself or herself possessed such intent. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002); State v. Beccera, 261 Neb. 596, 624 N.W.2d 21 (2001); State v. Sims, 28 Neb. 357, 603 N.W.2d 431 (2000).
"To abet" means to encourage or to assist. Neb.Rev.St. § 28-206.State v. Glantz, 251 Neb. 947, 560 N.W.2d 783 (1997).
One aids and abets crime by mere encouragement or assistance; physical participation in crime is not required. Neb. Rev. Stat. § 28-206. State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003); State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002); State v. Sims, 28 Neb. 357, 603 N.W.2d 431 (2000).
APPEALS:
Upon appeal from county court in a criminal case, the district court acts as an intermediate appellate court, rather than as a trial court. Its review is limited to an examination of the county court record for error or abuse of discretion. State v. Dvorak, 254 Neb. 87, 574 N.W.2d 492 (1998); State v. Styskal, 242 Neb. 26, 493 N.W.2d 313 (1992); State v. Douglass, 239 Neb. 891, 479 N.W.2d 457 (1992).
Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003); State v. Spotts, 257 Neb. 44,595 N.W.2d (1999); State v. Robbins, 253 Neb. 146, 570 N.W.2d 185 (1997).
An issue presented regarding the denial of a plea in bar is a question of law. State v. Trevino, 251 Neb. 344, 556 N.W.2d 638 (1996); State v. Wolf, 250 Neb. 352, 549 N.W.2d 183 (1996).
Denial of a plea in bar is a final order. Neb. Rev. Stat. §25-1902 (Reissue 1995). State v. Rubio, 261Neb. 475,623 N.W.2d 659 (2001); State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).
When reviewing the decision of a lower court, an appellate court may consider only evidence included within the record. State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 (1996); State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).
In general, in the absence of specific statutory authorization, the State has no right to appeal an adverse ruling in a criminal case. State v. Jones, 264 Neb. 812, 652 N.W.2d 288 (2002); State v. Johnson, 259 Neb. 942, 613 N.W.2d 459 (2000); State v. Seberger, 257 Neb. 247, 601 N.W.2d 299 (1999).
A judgment rendered or final order made by the district court may be reversed, vacated, or modified on appeal for errors appearing on the record. Neb. Rev. Stat. § 84-918 (Reissue 1999). State v. Lynch, 248 Neb. 234, 533 N.W.2d 905 (1995).
Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court has an obligation to reach a conclusion independent of that of the inferior court. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003); State v. Rathjen, 266 Neb. 62, 662 N.W.2d 591 (2003); State v. Jones, 264 Neb. 812, 652 N.W.2d 288 (2002).
APPOINTMENT OF COUNSEL:
After a defendant has perfected his or her direct appeal to an appellate court, if the defendant is without counsel, the appellate court, in its supervisory capacity and through its inherent power to do those things reasonably necessary for the administration of justice, may enter an order directing the trial court to appoint counsel to represent that defendant on direct appeal if the defendant asks that counsel be appointed and the defendant satisfactorily shows by affidavit to the district court that he or she is indigent. Neb. Rev. Stat. § 3901 et seq (Reissue 1995). State v. Dawn, 246 Neb. 384, 519 N.W.2d 249 (1994).
ARRESTS:
The determination of whether an arrest is pretextual is a question of fact for the trial court. An appellate court will not reverse a trial court's finding on this question unless the finding is clearly erroneous. State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
Arrest without warrant can be valid only if there existed, at the time, probable cause to believe both that felony had been committed and that person arrested committed it. U.S. Const. Amend. IV; Const. Art. 1, § 7; Neb. Rev. Stat. § 29-404.02. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
When law enforcement personnel have acted without warrant, burden is upon state to prove that arrest was reasonable. U.S. Const. Amend. IV; Const. Art. 1, § 7. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
ASSIGNMENTS OF ERROR NOT DISCUSSED:
An error must be assigned and discussed in the brief of one claiming that prejudicial error has occurred to be considered by this court. State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003); State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994). See also State v. Sommerfeld, 251 Neb. 876, 560 N.W.2d 420 (1997); State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996).
An appellate court does not consider errors which are argued but not assigned. State v. Tyma, 264 Neb. 712, 651 N.W.2d 582 (2002);State v. Dandridge, 264 Neb. 707, 651 N.W.2d 567 (2002).
It is incumbent upon an appellant to supply a record which supports his appeal; absent such a record, as a general rule, decision of lower court as to those errors shall be affirmed. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
Absent plain error, assignments of error not discussed in briefs will not be addressed by the reviewing court. State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000); State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998).
In reviewing decisions of the district court which affirmed, reversed, or modified decisions of the county court, this court will consider only those errors specifically assigned in the appeal to the district court and again assigned as error in the appeal to the higher appellate court. State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994). [Effective March 23, 1990--State v. Erlewine, 234 Neb. 855, 452 N.W.2d 764 (1990).]
Neb. Ct. R. of Cty. Cts. 52 (I)(G) (rev. 1999):
Statement of errors. Within 10 days of the filing of the bill of exceptions in the district court, the appellant shall file with the district court a statement of errors, which shall consist of a separate, concise statement of each error a party contends was made by the trial court. Each assignment of error shall be separately numbered and paragraphed. Consideration of the case will be limited to errors assigned and discussed. The district court may, at its option, notice a plain error not assigned. This rule shall not apply to small claims appeals.
The Nebraska Supreme Court, upon granting further review which results in the reversal of a decision of the Nebraska Court of Appeals, may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach. State v. Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003); State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999).
Assignments of error requiring an examination of the evidence are not available on appeal in the absence of a bill of exceptions that includes that evidence. Neb. Rev. Stat. § 25-1140 (Reissue 1995). State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001); State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992).
Allegations of ineffective assistance of counsel must be set forth in the assignments of error. State v. Gerstner, 244 Neb. 508, 507 N.W.2d 490 (1993).
While consideration of cause on appeal is generally limited to errors assigned and discussed by parties, Supreme Court is plainly allowed to note any plain error not assigned. Neb. Rev. Stat. § 25-1919; R. Prac. 9D(1)d. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).
ATTORNEY-CLIENT PRIVILEGE:
When reviewing the applicability of the attorney-client privilege and/or work product doctrine, an appellate court reaches a conclusion independent of the lower court’s ruling. Greenwalt v. Wal-Mart Stores, Inc., 253 Neb. 32, 567 N.W.2d 560 (1997).
Communication by attorney to client concerning date, time, and place of a scheduled trial is not confidential in nature so as to be protected from disclosure. Neb. Rev. Stat. §§ 7-105(4) (Reissue 1997), 27-503(2) (Reissue 1995); Code of Jud. Conduct, 4; Code of Prof. Resp., DR 4-101(B) (1995). State v. Hawes, 251 Neb. 305, 556 N.W.2d 634 (1996).
Evidential lawyer-client privilege exists to promote freedom of consultation of legal advisers by clients. State v. Hawes, 251 Neb. 305, 556 N.W.2d 634 (1996).
BENCH TRIAL:
Trial court's findings in a criminal case have the effect of a jury verdict, and a conviction in a bench trial will be sustained if the properly admitted trial evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000).
When the trial of a criminal case is to the court rather than a jury, the trial court's factual findings are given the same effect as a jury verdict and will not be set aside unless clearly erroneous. State v. Blackman, 254 Neb. 241, 580 N.W.2d 546 (1998); State v. Christner, 251 Neb. 549, 557 N.W.2d 707 (1997).
A trial judge sitting without a jury is not required to articulate findings of fact or conclusions of law in criminal cases, outside the context of a hearing on a motion to suppress. State v. Carpenter, 250 Neb. 427, 551 N.W.2d 518 (1996); State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995); State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992). Faced with a timely request, a judge sitting as a trier of fact may state in writing the conclusions of fact separately from the conclusions of law. State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994).
When considering the sufficiency of the evidence in determining whether to remand for a new trial or dismiss, an appellate court must consider all the evidence presented by the State and admitted by the trial court irrespective of the correctness of that admission. State v. Anderson, 258 Neb. 627, 605 N.W.2d 124 (2000).
In a case tried without a jury, it is presumed that in reaching its decision the trial court, as the finder of fact, considered only competent and relevant evidence. State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991).
It is presumed in a jury-waived criminal trial that the judge was familiar with and applied the proper rules of law unless it clearly appears otherwise. Challenges to prior plea-based convictions for enhancement proceedings may be made only if face of transcript fails to disclose that defendant had counsel or knowingly, understandingly, intelligently, and voluntarily waived counsel at time pleas were entered. U.S. Const. amends. VI, XIV. State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996); State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).
Decision to waive jury trial is ultimately and solely defendant's, and thus, defendant must bear responsibility for that decision. U.S. Const. amend. VI. State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002); State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).
Counsel's advice to waive jury trial can be source of valid claim of ineffective assistance only when counsel interferes with his client's freedom to decide to waive jury trial, or defendant can point to specific advice of counsel so unreasonable as to vitiate knowing and intelligent waiver of right. U.S. Const. amend. VI. State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002); State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).
BILL OF EXCEPTIONS:
The party appealing has the responsibility of including within the bill of exceptions matters from the record which the party believes are material to the issues presented for review. A bill of exceptions is the only vehicle for bringing evidence before the appellate court; evidence which is not made part of the bill of exceptions may not be considered. Neb. Rev. Stat. § 25-1140 (Reissue 1995). State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992); State v. Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991).
BRIEFS:
Although failure to comply with court rules may in some instances result in the Supreme Court not considering an issue raised in the appeal, failure to comply with court rule requiring appellate brief to contain a statement of basis for jurisdiction is not jurisdictional and therefore does not divest Supreme Court of jurisdiction. Practice and Procedure in the Supreme Court and Court of Appeals, Rule 9, subd. D(1) c (rev. 2001). State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001).
The failure of a party to submit a brief which complies with our rules may result in our treating the case as one in which no brief has been filed by that party. State v. Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991).
The purpose of an appellant's reply brief is to respond to the arguments the appellee has advanced against the errors assigned in the appellant's initial brief. Because the appellee would have no opportunity to respond, a reply brief cannot be used to raise new matters. State v. Chambers, 241 Neb. 66, 486 N.W.2d 481 (1992).
Practice and Procedure in the Supreme Court and Court of Appeals, Rule 9D(1) g (rev. 2000) requires that factual recitations be annotated to the record; the lack of such an annotation may result in an appellate court's overlooking a fact pertinent to the appeal. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).
An appellate brief must limit itself to arguments supported by the appellate record. State v. Rust, 247 Neb. 503, 528 N.W.2d 320 (1995).
Failing to include meritless assignments of error in an appellate brief was not ineffective assistance of counsel. U.S. Const. amend. VI. State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 (1996)
COLLATERAL ESTOPPEL:
The constitutional basis for collateral estoppel in a criminal case is founded on the principle that the Double Jeopardy Clause prohibits multiple prosecutions and multiple punishments. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
Collateral estoppel arises in a criminal case with the existence of four conditions: (1) the identical issue was decided in a prior action, (2) that action resulted in a valid final judgment on the merits, (3) the party against whom the rule is applied was a party or in privity with a party to the prior action, and (4) the parties had the opportunity to fully and fairly litigate the issue in the prior action. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
In relying on collateral estoppel in relation to the constitutional protection against double jeopardy in a present proceeding, a criminal defendant has the burden to prove that the particular issue which the State seeks to relitigate was necessarily and conclusively determined in the prior proceeding. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
The doctrines of collateral estoppel and res judicata are not applicable when the burden of persuasion is different in the subsequent proceeding. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
In a criminal case, a fact previously determined is not an “ultimate fact” precluded by the collateral estoppel principle unless it was necessarily determined by the fact finder against the government and, in the second prosecution, that same fact is required to be proved beyond a reasonable doubt in order to convict. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
CONFESSIONS:
Whether a defendant's statements resulted from an officer's promise is a question of fact. In determining whether the findings made by the trial court in that regard are clearly wrong, the appellate court takes into consideration that the trial court observed the witnesses testify during the hearing. State v. Garza, 241 Neb. 934, 492 N.W.2d 32 (1992); State v. Ray, 241 Neb. 551, 489 N.W.2d 558 (1992).
Voluntariness of an admission or confession is determined by the totality of the circumstances. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). A determination by the trial court that a confession was made voluntarily will not be overturned on appeal unless clearly wrong. State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2002); State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). In assessing the totality of the circumstances in determining whether a confession or statement was voluntary, the court will examine the tactics used by the police, the details of the interrogation, and any characteristics of the accused that might cause his or her will to be easily overborne. U.S.C.A. Const. Amend V. State v. Ray, 266 Neb. 659, 668 N.W.2d 52 (2003).
In determining voluntariness of statement, appellate court does not reweigh evidence or resolve conflicts in evidence, but recognizes trial court as finder of fact and takes into consideration that it observed witnesses. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004); State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003).
An accused’s statement made to private citizens, as well as to law enforcement personnel, must be voluntary as determined by a court for admissibility and as a fact ascertained by the jury. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).
An objection to admission of a statement that is claimed to be involuntary is waived if it is not raised by a motion prior to trial with the exception that a court may entertain such motions to suppress after the commencement of trial when the defendant is surprised by the introduction of such statements by the state. Neb. Rev. Stat. §29-115 (Cum. Supp. 2002). State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
A district court’s finding and determination that a defendant’s statement was voluntarily made will not be set aside on appeal unless this determination is clearly erroneous. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004).
The use of deceptive statements by police, standing alone, will not render a defendant's confession involuntary, unless the deception produced a false or untrustworthy confession. State v. Walker, 242 Neb. 99, 493 N.W.2d 329 (1992). See also State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997); State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).
Coercive police conduct is a necessary predicate to finding that a confession is not voluntary within the meaning of the due process clause of the Fourteenth Amendment. U.S. Const. amend. XIV. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004); State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
Among those circumstances to be considered when determining whether a confession was knowing, intelligent, and voluntary are the accused's minority and the role of the accused's parents. However, these are merely factors to be given consideration and are not dispositive. State v. Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993). See also State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2002); State v. Chojolan, 253 Neb. 591, 571 N.W.2d 621 (1997).
The State has the burden to establish by a preponderance of the evidence that a defendant's incriminating statement was voluntary and not coerced. U.S. Const. amend. XIV. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004); State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000); State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). However, police are not required to accept as conclusive any statement or act, no matter how ambiguous, as a sign that a suspect desires to cut off questioning so as to invoke the right to remain silent. State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003).
To be admissible in evidence, the accused's statement must be shown by the state to have been freely and voluntarily given and not to have been the product of any promise or inducement, direct or indirect, no matter how slight. State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996). A person who is aggrieved by a statement taken from him which is claimed to be involuntary may move for suppression of that statement. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
Failure to hold probable cause hearing within reasonable time is but one factor in totality of the circumstances analysis to determine voluntariness of statements. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
An in-custody statement voluntarily made without the benefit of Miranda warnings is admissible if it is not the product of interrogation. State v. Dallman, 260 Neb. 937, 621 N.W.2d 86 (2000).
CONFRONTATION CLAUSE:
When hearsay declarant is unavailable to testify at trial, declarant's out-of-court statements may be admitted without violating confrontation clause, so long as those statements bear sufficient indicia of reliability. U.S. amend. VI. State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997).
Confrontation Clause envisions a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. U.S. amend. VI, Neb. Const. Art 1, §11, State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000).
CONSPIRACY:
For out-of-court statements to be admissible under coconspirator exception to hearsay rule, statements of coconspirator must have been made while conspiracy was pending and in furtherance of its objects. Neb. Rev. Stat. § 27-801(4) (Reissue 1995). State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).
Coconspirator exception to hearsay rule is applicable regardless of whether conspiracy has been charged in information. Neb. Rev. Stat. § 27-801(4). State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997).
Before trier of fact may consider testimony under coconspirator exception to hearsay rule, prima facie case establishing existence of conspiracy must be shown by independent evidence. Neb. Rev. Stat. § 27-801(4). State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997).
Principal element of conspiracy is agreement or understanding between two or more persons to inflict wrong against or injury upon another. State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997). Under the unilateral approach to conspiracy, only the defendant need agree with another person; the second party can feign agreement, and this principle applies equally when the party who feigns agreement is a government agent. State v. Heitman, 262 Neb. 185, 629 N.W.2d 842 (2001).
Criminal conspiracy requires overt act, which manifests that conspiracy is still at work, and tends to show preexisting conspiracy and manifests intent or design toward accomplishment of crime; however, overt act, by itself, need not have capacity to accomplish conspiratorial objective and does not have to be criminal act. State v. Heitman, 262 Neb. 185, 629 N.W.2d 842 (2001); State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997).
Circumstantial evidence may establish existence of conspiracy or criminal intent necessary for conspiracy. State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997).
CONSTITUTIONALITY:
A constitutional question not properly raised in the trial court will not be considered on appeal. State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996); State v. One 1985 Mercedes 190D Automobile, 247 Neb. 335, 526 N.W.2d 657 (1995); State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994). If not so raised, it will be considered to have been waived. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993).
The party claiming a statute is unconstitutional has the burden to show and clearly demonstrate that the questioned statute is unconstitutional. Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003); State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002); State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002).
The alleged unconstitutionality of a statute presents a question of law which must be determined by a reviewing court independent from the conclusion reached by the trial court. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003); State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003); State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002).
A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002); State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002).
The constitutionality of an ordinance presents a question of law, in which an appellate court is obligated to reach a conclusion independent of the decision reached by the trial court. State v. Hookstra, 263 Neb. 116, 638 N.W.2d 829 (2002).
A penal statute must be construed so as to meet constitutional requirements if such can reasonably be done. State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002); State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002); State v. Hookstra, 263 Neb. 116, 638 N.W.2d 829 (2002).
Strict compliance with court rule requiring service of brief upon Attorney General is required before constitutional challenges will be considered. Practice and Procedure in the Supreme Court and Court of Appeals, Rule 9E, State v. Johnson, 12 Neb.App. 247, 670 N.W.2d 802 (2003).
Strict compliance with provisions of court rule of practice, requiring appellant challenging constitutionality of statute to file and serve separate written notice thereof with Supreme Court Clerk at time of filing such appellant's brief, is required for appellate court to consider challenge to constitutionality of statute. Practice and Procedure in the Supreme Court and Court of Appeals, Rule 9E, In re Rebecca P., 266 Neb. 869, 669 N.W.2d 658 (2003); Mid-City Bank, Inc. v. Douglas County Board of Equalization, 260 Neb. 282, 616 N.W.2d 341 (2000).
An appellate court must judge the constitutionality of an act of the Legislature not necessarily by what has been done or possibly may be done under it, but by what the statute authorizes to be done under its provisions. State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465 (1999); State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996).
Challenges to the constitutionality of a statute as applied to a defendant are properly preserved by a plea of not guilty. State v. McKee, 253 Neb. 100, 568 N.W.2d 559 (1997); State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996).
In order to have standing to attack a vague statute, one must not have engaged in conduct which is clearly proscribed by the statute. U.S. Const. amend. XIV. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); State v. VanAckeren, 263 Neb. 222, 639 N.W.2d 112 (2002).
In order to challenge statute on ground of vagueness, one must not have engaged in conduct which is clearly proscribed by statute and cannot complain of vagueness of law as applied to conduct of others. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); State v. VanAckeren, 263 Neb. 222, 639 N.W.2d 112 (2002).
The “void-for-vagueness” doctrine does not invalidate statute simply because it could have been drafted with greater precision; rather, test is whether defendant could reasonably understand that his conduct was proscribed by statute and in a manner that does not encourage arbitrary and discriminatory enforcement. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); State v. VanAckeren, 263 Neb. 222, 639 N.W.2d 112 (2002); State v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2002).
In reviewing constitutionality of statute, court does not pass judgment on wisdom or necessity of legislation or on whether statute is based upon assumptions which are scientifically substantiated. Gourley ex rel. Gourley v. Nebraska Health System, Inc., 265 Neb. 918, 663 N.W.2d 43 (2003), per curiam; State v. Garber, 249 Neb. 648, 545 N.W.2d 75 (1996).
As general rule, in challenge to overbreadth and vagueness of law, court's first task is to analyze overbreadth. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002).
CONTEMPT:
An appellate court, reviewing a final judgment or order in a contempt proceeding, reviews for errors appearing on the record. An appellate court will not overturn the trial court’s factual finding in a contempt proceeding will be upheld on appeal unless the finding is clearly erroneous. Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (2000); Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997).
Final judgment or order in a contempt proceeding is reviewed in the same manner as in a criminal case. State v. Hawes, 251 Neb. 305, 556 N.W.2d 634 (1996).
ADMISSION OF EVIDENCE:
In proceedings where the rules of evidence apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules, and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003), State v. Hurbenca, 266 Neb. 853 (2003).
The admissibility of evidence is reviewed for an abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003), State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003), State v. Brouillette, 265 Neb. 214, 655 N.W.2d (2003), State v. Tyma, 264 Neb. 712, 651 N.W.2d 582 (2002).
Because exercise of judicial discretion is implicit in evidence rule governing relevancy, it is within discretion of trial court to determine relevancy, and trial court's decision will not be reversed absent abuse of that discretion. Neb. Rev. Stat. § 27-401 (Reissue 1995). State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003), State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003), State v. Miner, 265 Neb. 778, 659 N.W.2d 331 (2003).
An error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).
Erroneous admission of evidence in a criminal trial is not prejudicial if it can be said that the error was harmless beyond a reasonable doubt. State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003); State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003); State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002), supp. op. at 264 Neb. 654, 650 N.W.2d 481 (2002); State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000). A reversal is warranted if the record shows that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2001); State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000).
In a jury trial of a criminal case, whether an error in admitting or excluding evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt. State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003); State v. Brouillate, 265 Neb. 214, 655 876 (2003); State v. Canady,263 Neb. 552, 641 N.W.2d 43 (2002); State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2002); State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000).
Where the admission of 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. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001); State v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000); State v. Kinser, 259 Neb. 251, 609 N.W.2d 322 (2000).
Admission or exclusion of photographs as evidence is within the discretion of a trial court, whose evidential ruling on the photographs will be upheld on appeal unless the trial court abused its discretion. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).
Trial court's ruling excluding relevant evidence because its probative value is substantially outweighed by danger of unfair prejudice or confusion of the issues will be upheld on appeal unless ruling is abuse of discretion. Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995). State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002); State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
Admission of photographs into evidence rests largely within the discretion of a trial court, which must determine their relevancy and weigh their probative value against their possible prejudicial effect. Neb. Rev. Stat. § 27-403 (Reissue 1995). State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Clark, 255 Neb. 1006, 588 N.W.2d 184(1999); State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997).
Ruling pursuant to rule requiring probative value of evidence to be weighed against danger of unfair prejudice, for exclusion of relevant evidence, will be upheld on appeal unless ruling is abuse of discretion. Neb. Rev. Stat. § 27-403. State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002); State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001); State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000).
In the context of rule excluding evidence whose unfair prejudice substantially outweighs probative value, "unfair prejudice" means undue tendency to suggest decision on improper basis. Neb. Rev. Stat. § 27-403. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003); State v. Miner, 265 Neb. 778, 659 331 N.W.2d (2003); State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
Erroneous admission of evidence in criminal trial is not prejudicial if it can be said that error was harmless beyond reasonable doubt. State v. Reiger, 260 Neb. 519, 618 N.W.2d 619 (2000); State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998); State v. McBride, 250 Neb. 636, 550 N.W.2d 659 (1996).
AIDING AND ABETTING:
The common-law distinction between a principal and an aider and abettor has been abolished; under the provisions of Neb. Rev. Stat. § 28-206 (Reissue 1995), one who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if one were the principal offender. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995); State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995).
When a crime requires the existence of a particular intent, an alleged aider or abettor can be held criminally liable as a principal if it is shown that the aider and abettor knew that the perpetrator of the act possessed the required intent or that the aider and abettor himself or herself possessed such intent. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002); State v. Beccera, 261 Neb. 596, 624 N.W.2d 21 (2001); State v. Sims, 28 Neb. 357, 603 N.W.2d 431 (2000).
"To abet" means to encourage or to assist. Neb.Rev.St. § 28-206.State v. Glantz, 251 Neb. 947, 560 N.W.2d 783 (1997).
One aids and abets crime by mere encouragement or assistance; physical participation in crime is not required. Neb. Rev. Stat. § 28-206. State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003); State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002); State v. Sims, 28 Neb. 357, 603 N.W.2d 431 (2000).
APPEALS:
Upon appeal from county court in a criminal case, the district court acts as an intermediate appellate court, rather than as a trial court. Its review is limited to an examination of the county court record for error or abuse of discretion. State v. Dvorak, 254 Neb. 87, 574 N.W.2d 492 (1998); State v. Styskal, 242 Neb. 26, 493 N.W.2d 313 (1992); State v. Douglass, 239 Neb. 891, 479 N.W.2d 457 (1992).
Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003); State v. Spotts, 257 Neb. 44,595 N.W.2d (1999); State v. Robbins, 253 Neb. 146, 570 N.W.2d 185 (1997).
An issue presented regarding the denial of a plea in bar is a question of law. State v. Trevino, 251 Neb. 344, 556 N.W.2d 638 (1996); State v. Wolf, 250 Neb. 352, 549 N.W.2d 183 (1996).
Denial of a plea in bar is a final order. Neb. Rev. Stat. §25-1902 (Reissue 1995). State v. Rubio, 261Neb. 475,623 N.W.2d 659 (2001); State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).
When reviewing the decision of a lower court, an appellate court may consider only evidence included within the record. State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 (1996); State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).
In general, in the absence of specific statutory authorization, the State has no right to appeal an adverse ruling in a criminal case. State v. Jones, 264 Neb. 812, 652 N.W.2d 288 (2002); State v. Johnson, 259 Neb. 942, 613 N.W.2d 459 (2000); State v. Seberger, 257 Neb. 247, 601 N.W.2d 299 (1999).
A judgment rendered or final order made by the district court may be reversed, vacated, or modified on appeal for errors appearing on the record. Neb. Rev. Stat. § 84-918 (Reissue 1999). State v. Lynch, 248 Neb. 234, 533 N.W.2d 905 (1995).
Whether a decision conforms to law is by definition a question of law, in connection with which an appellate court has an obligation to reach a conclusion independent of that of the inferior court. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003); State v. Rathjen, 266 Neb. 62, 662 N.W.2d 591 (2003); State v. Jones, 264 Neb. 812, 652 N.W.2d 288 (2002).
APPOINTMENT OF COUNSEL:
After a defendant has perfected his or her direct appeal to an appellate court, if the defendant is without counsel, the appellate court, in its supervisory capacity and through its inherent power to do those things reasonably necessary for the administration of justice, may enter an order directing the trial court to appoint counsel to represent that defendant on direct appeal if the defendant asks that counsel be appointed and the defendant satisfactorily shows by affidavit to the district court that he or she is indigent. Neb. Rev. Stat. § 3901 et seq (Reissue 1995). State v. Dawn, 246 Neb. 384, 519 N.W.2d 249 (1994).
ARRESTS:
The determination of whether an arrest is pretextual is a question of fact for the trial court. An appellate court will not reverse a trial court's finding on this question unless the finding is clearly erroneous. State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
Arrest without warrant can be valid only if there existed, at the time, probable cause to believe both that felony had been committed and that person arrested committed it. U.S. Const. Amend. IV; Const. Art. 1, § 7; Neb. Rev. Stat. § 29-404.02. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
When law enforcement personnel have acted without warrant, burden is upon state to prove that arrest was reasonable. U.S. Const. Amend. IV; Const. Art. 1, § 7. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
ASSIGNMENTS OF ERROR NOT DISCUSSED:
An error must be assigned and discussed in the brief of one claiming that prejudicial error has occurred to be considered by this court. State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003); State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994). See also State v. Sommerfeld, 251 Neb. 876, 560 N.W.2d 420 (1997); State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996).
An appellate court does not consider errors which are argued but not assigned. State v. Tyma, 264 Neb. 712, 651 N.W.2d 582 (2002);State v. Dandridge, 264 Neb. 707, 651 N.W.2d 567 (2002).
It is incumbent upon an appellant to supply a record which supports his appeal; absent such a record, as a general rule, decision of lower court as to those errors shall be affirmed. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
Absent plain error, assignments of error not discussed in briefs will not be addressed by the reviewing court. State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000); State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998).
In reviewing decisions of the district court which affirmed, reversed, or modified decisions of the county court, this court will consider only those errors specifically assigned in the appeal to the district court and again assigned as error in the appeal to the higher appellate court. State v. Ristau, 245 Neb. 52, 511 N.W.2d 83 (1994). [Effective March 23, 1990--State v. Erlewine, 234 Neb. 855, 452 N.W.2d 764 (1990).]
Neb. Ct. R. of Cty. Cts. 52 (I)(G) (rev. 1999):
Statement of errors. Within 10 days of the filing of the bill of exceptions in the district court, the appellant shall file with the district court a statement of errors, which shall consist of a separate, concise statement of each error a party contends was made by the trial court. Each assignment of error shall be separately numbered and paragraphed. Consideration of the case will be limited to errors assigned and discussed. The district court may, at its option, notice a plain error not assigned. This rule shall not apply to small claims appeals.
The Nebraska Supreme Court, upon granting further review which results in the reversal of a decision of the Nebraska Court of Appeals, may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach. State v. Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003); State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999).
Assignments of error requiring an examination of the evidence are not available on appeal in the absence of a bill of exceptions that includes that evidence. Neb. Rev. Stat. § 25-1140 (Reissue 1995). State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001); State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992).
Allegations of ineffective assistance of counsel must be set forth in the assignments of error. State v. Gerstner, 244 Neb. 508, 507 N.W.2d 490 (1993).
While consideration of cause on appeal is generally limited to errors assigned and discussed by parties, Supreme Court is plainly allowed to note any plain error not assigned. Neb. Rev. Stat. § 25-1919; R. Prac. 9D(1)d. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).
ATTORNEY-CLIENT PRIVILEGE:
When reviewing the applicability of the attorney-client privilege and/or work product doctrine, an appellate court reaches a conclusion independent of the lower court’s ruling. Greenwalt v. Wal-Mart Stores, Inc., 253 Neb. 32, 567 N.W.2d 560 (1997).
Communication by attorney to client concerning date, time, and place of a scheduled trial is not confidential in nature so as to be protected from disclosure. Neb. Rev. Stat. §§ 7-105(4) (Reissue 1997), 27-503(2) (Reissue 1995); Code of Jud. Conduct, 4; Code of Prof. Resp., DR 4-101(B) (1995). State v. Hawes, 251 Neb. 305, 556 N.W.2d 634 (1996).
Evidential lawyer-client privilege exists to promote freedom of consultation of legal advisers by clients. State v. Hawes, 251 Neb. 305, 556 N.W.2d 634 (1996).
BENCH TRIAL:
Trial court's findings in a criminal case have the effect of a jury verdict, and a conviction in a bench trial will be sustained if the properly admitted trial evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000).
When the trial of a criminal case is to the court rather than a jury, the trial court's factual findings are given the same effect as a jury verdict and will not be set aside unless clearly erroneous. State v. Blackman, 254 Neb. 241, 580 N.W.2d 546 (1998); State v. Christner, 251 Neb. 549, 557 N.W.2d 707 (1997).
A trial judge sitting without a jury is not required to articulate findings of fact or conclusions of law in criminal cases, outside the context of a hearing on a motion to suppress. State v. Carpenter, 250 Neb. 427, 551 N.W.2d 518 (1996); State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995); State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992). Faced with a timely request, a judge sitting as a trier of fact may state in writing the conclusions of fact separately from the conclusions of law. State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994).
When considering the sufficiency of the evidence in determining whether to remand for a new trial or dismiss, an appellate court must consider all the evidence presented by the State and admitted by the trial court irrespective of the correctness of that admission. State v. Anderson, 258 Neb. 627, 605 N.W.2d 124 (2000).
In a case tried without a jury, it is presumed that in reaching its decision the trial court, as the finder of fact, considered only competent and relevant evidence. State v. Stephens, 237 Neb. 551, 466 N.W.2d 781 (1991).
It is presumed in a jury-waived criminal trial that the judge was familiar with and applied the proper rules of law unless it clearly appears otherwise. Challenges to prior plea-based convictions for enhancement proceedings may be made only if face of transcript fails to disclose that defendant had counsel or knowingly, understandingly, intelligently, and voluntarily waived counsel at time pleas were entered. U.S. Const. amends. VI, XIV. State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996); State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).
Decision to waive jury trial is ultimately and solely defendant's, and thus, defendant must bear responsibility for that decision. U.S. Const. amend. VI. State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002); State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).
Counsel's advice to waive jury trial can be source of valid claim of ineffective assistance only when counsel interferes with his client's freedom to decide to waive jury trial, or defendant can point to specific advice of counsel so unreasonable as to vitiate knowing and intelligent waiver of right. U.S. Const. amend. VI. State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002); State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).
BILL OF EXCEPTIONS:
The party appealing has the responsibility of including within the bill of exceptions matters from the record which the party believes are material to the issues presented for review. A bill of exceptions is the only vehicle for bringing evidence before the appellate court; evidence which is not made part of the bill of exceptions may not be considered. Neb. Rev. Stat. § 25-1140 (Reissue 1995). State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992); State v. Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991).
BRIEFS:
Although failure to comply with court rules may in some instances result in the Supreme Court not considering an issue raised in the appeal, failure to comply with court rule requiring appellate brief to contain a statement of basis for jurisdiction is not jurisdictional and therefore does not divest Supreme Court of jurisdiction. Practice and Procedure in the Supreme Court and Court of Appeals, Rule 9, subd. D(1) c (rev. 2001). State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001).
The failure of a party to submit a brief which complies with our rules may result in our treating the case as one in which no brief has been filed by that party. State v. Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991).
The purpose of an appellant's reply brief is to respond to the arguments the appellee has advanced against the errors assigned in the appellant's initial brief. Because the appellee would have no opportunity to respond, a reply brief cannot be used to raise new matters. State v. Chambers, 241 Neb. 66, 486 N.W.2d 481 (1992).
Practice and Procedure in the Supreme Court and Court of Appeals, Rule 9D(1) g (rev. 2000) requires that factual recitations be annotated to the record; the lack of such an annotation may result in an appellate court's overlooking a fact pertinent to the appeal. State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992).
An appellate brief must limit itself to arguments supported by the appellate record. State v. Rust, 247 Neb. 503, 528 N.W.2d 320 (1995).
Failing to include meritless assignments of error in an appellate brief was not ineffective assistance of counsel. U.S. Const. amend. VI. State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 (1996)
COLLATERAL ESTOPPEL:
The constitutional basis for collateral estoppel in a criminal case is founded on the principle that the Double Jeopardy Clause prohibits multiple prosecutions and multiple punishments. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
Collateral estoppel arises in a criminal case with the existence of four conditions: (1) the identical issue was decided in a prior action, (2) that action resulted in a valid final judgment on the merits, (3) the party against whom the rule is applied was a party or in privity with a party to the prior action, and (4) the parties had the opportunity to fully and fairly litigate the issue in the prior action. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
In relying on collateral estoppel in relation to the constitutional protection against double jeopardy in a present proceeding, a criminal defendant has the burden to prove that the particular issue which the State seeks to relitigate was necessarily and conclusively determined in the prior proceeding. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
The doctrines of collateral estoppel and res judicata are not applicable when the burden of persuasion is different in the subsequent proceeding. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
In a criminal case, a fact previously determined is not an “ultimate fact” precluded by the collateral estoppel principle unless it was necessarily determined by the fact finder against the government and, in the second prosecution, that same fact is required to be proved beyond a reasonable doubt in order to convict. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
CONFESSIONS:
Whether a defendant's statements resulted from an officer's promise is a question of fact. In determining whether the findings made by the trial court in that regard are clearly wrong, the appellate court takes into consideration that the trial court observed the witnesses testify during the hearing. State v. Garza, 241 Neb. 934, 492 N.W.2d 32 (1992); State v. Ray, 241 Neb. 551, 489 N.W.2d 558 (1992).
Voluntariness of an admission or confession is determined by the totality of the circumstances. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). A determination by the trial court that a confession was made voluntarily will not be overturned on appeal unless clearly wrong. State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2002); State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997). In assessing the totality of the circumstances in determining whether a confession or statement was voluntary, the court will examine the tactics used by the police, the details of the interrogation, and any characteristics of the accused that might cause his or her will to be easily overborne. U.S.C.A. Const. Amend V. State v. Ray, 266 Neb. 659, 668 N.W.2d 52 (2003).
In determining voluntariness of statement, appellate court does not reweigh evidence or resolve conflicts in evidence, but recognizes trial court as finder of fact and takes into consideration that it observed witnesses. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004); State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003).
An accused’s statement made to private citizens, as well as to law enforcement personnel, must be voluntary as determined by a court for admissibility and as a fact ascertained by the jury. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).
An objection to admission of a statement that is claimed to be involuntary is waived if it is not raised by a motion prior to trial with the exception that a court may entertain such motions to suppress after the commencement of trial when the defendant is surprised by the introduction of such statements by the state. Neb. Rev. Stat. §29-115 (Cum. Supp. 2002). State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
A district court’s finding and determination that a defendant’s statement was voluntarily made will not be set aside on appeal unless this determination is clearly erroneous. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004).
The use of deceptive statements by police, standing alone, will not render a defendant's confession involuntary, unless the deception produced a false or untrustworthy confession. State v. Walker, 242 Neb. 99, 493 N.W.2d 329 (1992). See also State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997); State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).
Coercive police conduct is a necessary predicate to finding that a confession is not voluntary within the meaning of the due process clause of the Fourteenth Amendment. U.S. Const. amend. XIV. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004); State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
Among those circumstances to be considered when determining whether a confession was knowing, intelligent, and voluntary are the accused's minority and the role of the accused's parents. However, these are merely factors to be given consideration and are not dispositive. State v. Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993). See also State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2002); State v. Chojolan, 253 Neb. 591, 571 N.W.2d 621 (1997).
The State has the burden to establish by a preponderance of the evidence that a defendant's incriminating statement was voluntary and not coerced. U.S. Const. amend. XIV. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004); State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000); State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). However, police are not required to accept as conclusive any statement or act, no matter how ambiguous, as a sign that a suspect desires to cut off questioning so as to invoke the right to remain silent. State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003).
To be admissible in evidence, the accused's statement must be shown by the state to have been freely and voluntarily given and not to have been the product of any promise or inducement, direct or indirect, no matter how slight. State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996). A person who is aggrieved by a statement taken from him which is claimed to be involuntary may move for suppression of that statement. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003); State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
Failure to hold probable cause hearing within reasonable time is but one factor in totality of the circumstances analysis to determine voluntariness of statements. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
An in-custody statement voluntarily made without the benefit of Miranda warnings is admissible if it is not the product of interrogation. State v. Dallman, 260 Neb. 937, 621 N.W.2d 86 (2000).
CONFRONTATION CLAUSE:
When hearsay declarant is unavailable to testify at trial, declarant's out-of-court statements may be admitted without violating confrontation clause, so long as those statements bear sufficient indicia of reliability. U.S. amend. VI. State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997).
Confrontation Clause envisions a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. U.S. amend. VI, Neb. Const. Art 1, §11, State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000).
CONSPIRACY:
For out-of-court statements to be admissible under coconspirator exception to hearsay rule, statements of coconspirator must have been made while conspiracy was pending and in furtherance of its objects. Neb. Rev. Stat. § 27-801(4) (Reissue 1995). State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997).
Coconspirator exception to hearsay rule is applicable regardless of whether conspiracy has been charged in information. Neb. Rev. Stat. § 27-801(4). State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997).
Before trier of fact may consider testimony under coconspirator exception to hearsay rule, prima facie case establishing existence of conspiracy must be shown by independent evidence. Neb. Rev. Stat. § 27-801(4). State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997).
Principal element of conspiracy is agreement or understanding between two or more persons to inflict wrong against or injury upon another. State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997). Under the unilateral approach to conspiracy, only the defendant need agree with another person; the second party can feign agreement, and this principle applies equally when the party who feigns agreement is a government agent. State v. Heitman, 262 Neb. 185, 629 N.W.2d 842 (2001).
Criminal conspiracy requires overt act, which manifests that conspiracy is still at work, and tends to show preexisting conspiracy and manifests intent or design toward accomplishment of crime; however, overt act, by itself, need not have capacity to accomplish conspiratorial objective and does not have to be criminal act. State v. Heitman, 262 Neb. 185, 629 N.W.2d 842 (2001); State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997).
Circumstantial evidence may establish existence of conspiracy or criminal intent necessary for conspiracy. State v. Hansen, 252 Neb. 489, 252 N.W.2d 840 (1997).
CONSTITUTIONALITY:
A constitutional question not properly raised in the trial court will not be considered on appeal. State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996); State v. One 1985 Mercedes 190D Automobile, 247 Neb. 335, 526 N.W.2d 657 (1995); State v. Huebner, 245 Neb. 341, 513 N.W.2d 284 (1994). If not so raised, it will be considered to have been waived. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993).
The party claiming a statute is unconstitutional has the burden to show and clearly demonstrate that the questioned statute is unconstitutional. Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003); State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002); State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002).
The alleged unconstitutionality of a statute presents a question of law which must be determined by a reviewing court independent from the conclusion reached by the trial court. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003); State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003); State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002).
A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality. State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002); State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002).
The constitutionality of an ordinance presents a question of law, in which an appellate court is obligated to reach a conclusion independent of the decision reached by the trial court. State v. Hookstra, 263 Neb. 116, 638 N.W.2d 829 (2002).
A penal statute must be construed so as to meet constitutional requirements if such can reasonably be done. State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002); State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002); State v. Hookstra, 263 Neb. 116, 638 N.W.2d 829 (2002).
Strict compliance with court rule requiring service of brief upon Attorney General is required before constitutional challenges will be considered. Practice and Procedure in the Supreme Court and Court of Appeals, Rule 9E, State v. Johnson, 12 Neb.App. 247, 670 N.W.2d 802 (2003).
Strict compliance with provisions of court rule of practice, requiring appellant challenging constitutionality of statute to file and serve separate written notice thereof with Supreme Court Clerk at time of filing such appellant's brief, is required for appellate court to consider challenge to constitutionality of statute. Practice and Procedure in the Supreme Court and Court of Appeals, Rule 9E, In re Rebecca P., 266 Neb. 869, 669 N.W.2d 658 (2003); Mid-City Bank, Inc. v. Douglas County Board of Equalization, 260 Neb. 282, 616 N.W.2d 341 (2000).
An appellate court must judge the constitutionality of an act of the Legislature not necessarily by what has been done or possibly may be done under it, but by what the statute authorizes to be done under its provisions. State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465 (1999); State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996).
Challenges to the constitutionality of a statute as applied to a defendant are properly preserved by a plea of not guilty. State v. McKee, 253 Neb. 100, 568 N.W.2d 559 (1997); State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996).
In order to have standing to attack a vague statute, one must not have engaged in conduct which is clearly proscribed by the statute. U.S. Const. amend. XIV. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); State v. VanAckeren, 263 Neb. 222, 639 N.W.2d 112 (2002).
In order to challenge statute on ground of vagueness, one must not have engaged in conduct which is clearly proscribed by statute and cannot complain of vagueness of law as applied to conduct of others. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); State v. VanAckeren, 263 Neb. 222, 639 N.W.2d 112 (2002).
The “void-for-vagueness” doctrine does not invalidate statute simply because it could have been drafted with greater precision; rather, test is whether defendant could reasonably understand that his conduct was proscribed by statute and in a manner that does not encourage arbitrary and discriminatory enforcement. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); State v. VanAckeren, 263 Neb. 222, 639 N.W.2d 112 (2002); State v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2002).
In reviewing constitutionality of statute, court does not pass judgment on wisdom or necessity of legislation or on whether statute is based upon assumptions which are scientifically substantiated. Gourley ex rel. Gourley v. Nebraska Health System, Inc., 265 Neb. 918, 663 N.W.2d 43 (2003), per curiam; State v. Garber, 249 Neb. 648, 545 N.W.2d 75 (1996).
As general rule, in challenge to overbreadth and vagueness of law, court's first task is to analyze overbreadth. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002).
CONTEMPT:
An appellate court, reviewing a final judgment or order in a contempt proceeding, reviews for errors appearing on the record. An appellate court will not overturn the trial court’s factual finding in a contempt proceeding will be upheld on appeal unless the finding is clearly erroneous. Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (2000); Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997).
Final judgment or order in a contempt proceeding is reviewed in the same manner as in a criminal case. State v. Hawes, 251 Neb. 305, 556 N.W.2d 634 (1996).
CONTINUANCE:
A motion for a continuance in a criminal case is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion. State v. Gutierrez, 260 Neb. 1008, 620 N.W.2d 738 (2001); State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
CONVICTIONS:
In reviewing a criminal conviction, an appellate court must view the evidence in the light most favorable to the prevailing party. State v. Bush, 254 Neb. 260, 576 N.W.2d 177 (1998); State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996).
A conviction will not be set aside unless the defendant meets his or her burden of showing that the claimed error created actual prejudice and not the mere possibility of prejudice. State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003); State v. Bronson, 242 Neb. 931, 496 N.W.2d 882 (1993).
A conviction cannot be based upon suspicion, speculation, the weakness of the status of the accused, the embarrassing position in which he finds himself, or the mere fact that some unfavorable circumstances are not satisfactorily explained. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999); State v. Hulshizer, 245 Neb. 244, 512 N.W.2d 372 (1994).
CROSS-EXAMINATION: (See also Confrontation Clause)
In the absence of an abuse of discretion, a trial court's ruling regarding the extent, scope, and course of cross-examination will be upheld on appeal. Hawkins v. City of Omaha, 261 Neb. 943, 627 N.W.2d 118 (2002); State v. Bronson, 242 Neb. 931, 496 N.W.2d 882 (1993). See also State v. Dixon, 240 Neb. 454, 482 N.W.2d 573 (1992).
When object of cross-examination is to collaterally ascertain accuracy or credibility of witness, the scope of inquiry is ordinarily subject to the discretion of the trial court, and, unless abused, its exercise is not reversible error. State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996).
Right to confront witnesses only guarantees opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. U.S. amend. VI; Neb. Const. Art. 1, § 11. State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996).
Accused's constitutional right of confrontation is violated when he is prohibited from engaging in otherwise appropriate cross-examination designed to show prototypical form of bias on part of witness or when reasonable jury would have received significantly different impression of witness' credibility had counsel been permitted to pursue proposed line of cross-examination. U.S. Const. amend. VI; Neb. Const. Art. 1, § 11. State v. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001); State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996). See also State v. Johnson, 255 Neb. 865, 587 N.W.2d 546 (1998).
It is within discretion of trial court to control and limit cross-examination as necessary to prevent undue prejudice and thus produce fair trial. Neb. Rev. Stat. §27-611(2) (Reissue 1995). State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001); State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
DEPOSITION:
Statute limiting use of deposition testimony at trial to contradicting or impeaching testimony of deponent governs only the appropriate use of a discovery deposition when the deponent is an available, testifying witness. Neb. Rev. Stat. § 29-1917(4) (Reissue 1995). State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997).
DIRECTED VERDICT:
In a criminal case a court can direct a verdict only where there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained; thus if there is any evidence which will sustain a finding for the party against whom the motion for directed verdict is made, the case may not be decided as a matter of law. State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003); State v. Segura, 265 Neb. 903, N.W.2d (2003).
A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, where an issue should be decided as a matter of law. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997); State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994).
Where the State fails to demonstrate a prima facie case on the crime charged, but does so on a lesser-included offense, the trial court in its discretion may direct a verdict on the crime charged and submit the evidence to the trier of fact for consideration on the lesser-included offense. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
A defendant who moves for dismissal or a directed verdict at the close of evidence in the State's case in chief in a criminal prosecution, and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court's overruling the motion for dismissal or a directed verdict, but may challenge sufficiency of the evidence for the defendant's conviction. State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002); State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996).
When defendant makes motion at close of state's case in chief and again at conclusion of all evidence, defendant may assign as error that his or her motion for directed verdict made at conclusion of all evidence should have been sustained. State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996).
DISCOVERY:
A trial court is vested with broad discretion in considering discovery requests of defense counsel, and error can be predicated only upon an abuse of discretion. State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995). See also State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
A trial court has discretion in the matter of discovery where material is sought for impeachment purposes. However, a witness may assert that the information sought is privileged or protected and resist discovery. State v. Cisneros, 248 Neb. 372, 535 N.W.2d 703 (1995).
State's failure to produce material evidence, relating to investigation of other suspects, before first day of trial on murder charges violated discovery statute and district court's discovery order, and district court abused its discretion and committed plain error in failing to grant continuance until defendant could adequately investigate police reports and prepare his defense. Neb. Rev. Stat. § 29-1912 (Reissue 1995). State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).
While Brady v. Maryland and Kyles v. Whitley impose constitutional mandate for disclosure in criminal cases, statutory design for discovery can exact more than the constitutional minimum, so that courts must focus on information potentially useful to defense. U.S. Const. amend. XIV; Neb. Rev. Stat. § 29-1912. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).
Under discovery statute, whether prosecutor's failure to disclose evidence results in prejudice depends on whether information sought is material to preparation of defense, meaning that there is strong indication that such information will play important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal. Neb. Rev. Stat. § 29-1912. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).
Discovery process is not game of "hide the ball" and discovery orders must be completed in timely manner. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).
Discovery in a criminal case is generally, and in the absence of a constitutional requirement, controlled by either a statute or court rule. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001); State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
Discovery in criminal cases in Nebraska is governed by statute which exacts more than the constitutional minimum with respect to disclosure of exculpatory information. Neb. Rev. Stat. § 29-1912 (Reissue 1995). State v. Castor, 257 Neb. 572, 559 N.W.2d 201 (1999).
DNA EVIDENCE:
DNA testing results can be admissible only if the protocol followed is established according to principles generally accepted in the relevant scientific fields. State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992).See State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994).
There was nothing controversial about theory underlying DNA typing; there was general scientific acceptance of theory underlying DNA identification. State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997).
The Frye-Houser test instructs a trial court faced with an offer of DNA evidence to decide preliminarily, outside the presence of the jury, on the basis of the evidence before it (1) whether the witnesses on the DNA issue are experts in the relevant scientific fields; (2) whether the DNA testing used in the case under consideration is generally accepted by the relevant scientific communities; (3) whether the method of testing used in the case under consideration is generally accepted as reliable if performed properly; (4) whether the tests conducted properly followed the method; (5) whether the DNA analysis evidence is more probative than prejudicial under Neb. Rev. Stat. § 27-403 (Reissue 1995); and (6) whether statistical probability evidence interpreting the analysis results is more probative than prejudicial. State v. Jackson, 255 Neb. 68, 582 N.W.2d 317 (1998); State v. Carter, 255 Neb. 818, 586 N.W.2d 818 (1998).
DOUBLE JEOPARDY:
The double jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
A criminal defendant, relying on collateral estoppel in relation to constitutional protection against double jeopardy in a present proceeding, has the burden to prove that the particular issue which is sought to be relitigated, but which is constitutionally foreclosed by the Double Jeopardy Clause, was necessarily or actually determined in a previously concluded criminal proceeding. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002); State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994).
The determination of a nonfrivolous double jeopardy claim affects the substantial right not to be tried twice for the same offense. State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998); State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996).
A defendant who already has been punished in a criminal proceeding may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996); State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996).
The fact that a statute designed primarily to serve remedial purposes secondarily serves the exemplary purpose of general deterrence does not require a conclusion that the statute results in punishment for double jeopardy purposes. State v. Wolf, 250 Neb. 352, 549 N.W.2d 183 (1996); State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
Jeopardy attaches when a judge, hearing a case without a jury, begins to hear evidence as to the guilt of the defendant. State v. Rhea, 262 Neb. 886, 636 N.W.2d 364 (2001); State v. Thomas, 262 Neb. 138, 629 N.W.2d 503 (2001).
The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. U.S. Const. Amend. 5, Neb. Const. art. 1, § 12, State v. Mata, 266 Neb. 668, 668 N.W. 2d 448 (2003); State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
.
Whether the Legislature intended a civil or criminal sanction, for double jeopardy purposes, is simply a matter of statutory construction. U.S. Const. Amend. 5, Neb. Const. art. 1, §12; State v. Isham, 261 Neb. 690, 625 N.W.2d 511 (2001).
In deciding whether civil penalty constitutes "punishment" for double jeopardy purposes, it is immaterial whether civil penalty precedes or follows criminal proceeding. U.S. Const. amends. V, XIV; Neb. Const. art. 1, § 12. State v. Stubblefield, 249 Neb. 436, 543 N.W.2d 743 (1996).
If same act or transaction constitutes violation of two distinct statutory provisions, test to be applied to determine whether there are two offenses or only one, for double jeopardy purposes, is whether each provision requires proof of a fact which other does not. U.S. Const. amends. V, XIV; Const. art. 1, § 12. State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003); State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
The Blockburger, or “same elements” double jeopardy test asks whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars additional punishment and successive prosecution, and this test applies equally to multiple punishment and multiple prosecution cases. U.S. Const. amends. V, XIV; Neb. Const. art. 1, § 12. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
In analyzing whether purpose or effect of a civil sanction statute is so punitive as to negate Legislature’s intent, for double jeopardy purposes, the following factors are to be considered: (1) whether sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution or deterrence; (5) whether behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable to it; and (7) whether it appears excessive in relation to the alternative purpose assigned. U.S. Const. Amend. 5, Neb. Const. art. 1, § 12; State v. Isham, 261 Neb. 690, 625 N.W.2d 511 (2001).
Assessment of tax, penalty, and interest pursuant to drug tax statutes and charge of possession of marijuana with intent to deliver did not constitute same offense for purposes of double jeopardy, as violation of drug possession and distribution statute requires proof of intent to manufacture, distribute, deliver, or dispense controlled substance, but drug tax statute does not, and as violation of drug tax statute requires proof that excise tax has not been paid and that dealer possessed at least six or more ounces of marijuana, which drug possession statute does not require. U.S. Const. amends. V, XIV; Neb. Const. art. 1, § 12; Neb. Rev. Stat. §§ 77-4301 to 77-4316. State v. Stubblefield, 249 Neb. 436, 543 N.W.2d 743 (1996).
If criminal defendant is to avoid exposure to double jeopardy his double jeopardy challenge to indictment must be reviewable before that subsequent exposure occurs. U.S. Const. amend. V. State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996).
Once a determination is made that a sanction was intended to be civil in nature, a court considering a double jeopardy claim will reject the Legislature’s manifest intent only where a party challenging the statute provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State’s intent. U.S. Const. Amend. 5, Neb. Const. art. 1, § 12; State v. Isham, 261 Neb. 690, 625 N.W.2d 511 (2001). Only the clearest proof is sufficient to negate the Legislature’s intent and render a civil sanction criminal for double jeopardy purposes. U.S. Const. Amend. 5, Neb. Const. art. 1, § 12. State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998).
A predicate felony is a lesser-included offense of felony murder for sentencing purposes, such that a defendant cannot be convicted and sentenced for both felony murder and the underlying felony without violating the Double Jeopardy Clause. State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003); State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
Directed verdict of acquittal on felony murder charge was not double jeopardy bar to conviction of premeditated murder in same trial; defendant was not twice put in jeopardy because he was charge at one trial under alternative theories. U.S. Const. Amend. 5, Neb. Const. art. 1, § 12, State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
Underlying felony merges into a felony murder conviction and cannot be punished separately, barring a clear indication by the Legislature that independent punishments were intended; however, vacating the sentence for the underlying felony cures the double jeopardy violation. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
Constitutional prohibition against double jeopardy not only protects against second prosecution for same offense after acquittal or conviction, but also protects against multiple punishments for same offense. U.S. Const. amend. V. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
The Double Jeopardy Clause does not potentially come into play until the defendant has first been put into jeopardy, and even then, it is only the second proceeding that is constitutionally endangered. U.S. Const. amend 5, Neb. Const. art 1, § 3. State v. Thomas, 262 Neb. 138, 629 N.W.2d 503 (2001).
The protections provided by Nebraska’s double jeopardy clause is no greater, and thus coextensive, with that provided by the federal Constitution. U.S. Const. Amend. 5, Neb. Const. art. 1, § 12, State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003); State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001).
DUE PROCESS:
When an individual claims he is being deprived of a liberty interest without due process, the claim is examined in three stages. First, a determination must be made that there is a liberty interest at stake. In the second stage, the court must determine what procedural safeguards are required. Finally, the facts of the case are examined to ascertain whether there was a denial of that process which was due. Benitez v. Rasmussen, 261 Neb. 806, 626 N.W.2d 609 (2001); State v. Baker, 245 Neb. 153, 511 N.W.2d 757 (1994).
Constitutional provision that states that no person shall be deprived of liberty "without due process of law," and provision that grants accused in criminal prosecution right to trial by impartial jury require that criminal convictions rest upon jury determination that criminal defendant is guilty beyond reasonable doubt of every element of crime with which defendant is charged. Const. art. 1, §§ 3, 11. State v. Putz, 266 Neb. 37, 662 N.W.2d 606 (2003). See also State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
States are free to afford their citizens greater due process protection under their state constitutions than is granted by the federal Constitution. State v. Lee, 251 Neb. 661, 558 N.W.2d 571 (1997).
In a criminal case, due process requires the prosecution to prove, beyond a reasonable doubt, every factual element necessary to constitute the crime charged. U.S. Const. Amend. 14, State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003); Benitez v. Rasmussen, 261 Neb. 806, 626 N.W.2d 209 (2001).
Due process claims are generally subjected to a two-part analysis which asks: (1) whether the asserted interest is protected by the Due Process Clause, and (2) if so, what process is due. State v. Hess, 261 Neb. 368, 62 N.W.2d 891 (2001).
EQUAL PROTECTION:
If legislative classification involves either suspect class or fundamental right, courts conducting equal protection review will analyze statute with "strict scrutiny"; under this test, strict congruence must exist between classification and statute's purpose, and end legislature seeks to effectuate must be compelling state interest, and means employed in statute must be such that no less restrictive alternative exists. U.S. Const. amend. XIV. State v. Garber, 249 Neb. 648, 545 N.W.2d 75 (1996).
If statute involves economic or social legislation not implicating fundamental right or suspect class, courts conducting equal protection review will ask only whether rational relationship exists between legitimate state interest and statutory means selected by legislature to accomplish that end; upon showing that such rational relationship exists, courts will uphold legislation. U.S. Const. amend. XIV. State v. Garber, 249 Neb. 648, 545 N.W.2d 75 (1996). The court only applies minimal scrutiny under this equal protection analysis. U.S. Const. Amend. 14 Hall v. Progress Pig, Inc., 259 Neb. 407, 610 N.W.2d 420 (2000).
Rational basis standard of equal protection review is offended only if classification rests on grounds wholly irrelevant to achievement of state's objective. U.S. Const. amend. XIV. State v. Garber, 249 Neb. 648, 545 N.W.2d 75 (1996).
Under rational basis standard, the most relaxed and tolerant form of judicial scrutiny under the equal protection clause, legislature is not required to adopt best solution; it is sufficient if solution adopted has some rational relationship to state's objective. U.S. Const. amend. XIV. State v. Garber, 249 Neb. 648, 545 N.W.2d 75 (1996).
ERRORS:
A defendant cannot complain of error which he invited the court to commit. State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003); State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
EVIDENCE:
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Neb. Rev. Stat. § 27-401 (Reissue 1995). State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003); State v. Miner, 265 Neb. 778, 659 N.W.2d 331 (2003).
A determination whether evidence is relevant is within a trial court's discretion, and, in the absence of an abuse of discretion, the trial court's ruling on relevance will be upheld on appeal. Neb. Rev. Stat. §§ 27-401, 27-403 (Reissue 1995). State v.Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
To be relevant, evidence must be rationally related to an issue by a likelihood, not a mere possibility, of proving or disproving an issue to be decided. Neb. Rev. Stat. §27-401 (Reissue 1995). State v.McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003). If evidence fails to alter the probabilities of the existence or nonexistence of a fact in issue, the evidence is irrelevant. State v. Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003).
To the extent that previous Nebraska Supreme Court cases require an appellate court to construe evidence in favor of the accused, whether the evidence be solely circumstantial, direct, or a combination thereof, they are overruled. State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).
In criminal cases, circumstantial evidence is to be treated the same as direct evidence, and the State, upon review, is entitled to have all conflicting evidence, direct and circumstantial, and the reasonable inferences which can be drawn from the evidence viewed in its favor. State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
Erroneous admission of evidence is 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. State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003).
"Cumulative" evidence means evidence tending to prove same point of which other evidence has been offered. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
Where the record shows that the trial court in a trial tried to the court relied upon inadmissible and prejudicial evidence in finding the defendant guilty, the judgment must be reversed. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
Because Neb. Rev. Stat. § 27-106 (Reissue 1995) is concerned with the danger of admitting a statement out of context, additional evidence is admissible only if it qualifies or explains the previous testimony. State v. Schrein, 244 Neb. 136, 504 N.W.2d 827 (1993).
The trial court is only required to weigh the danger of unfair prejudice against the probative value of the evidence when requested to do so at trial. Neb. Rev. Stat. §27-403 (Reissue 1995). State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
Balancing the probative value of evidence against the danger of unfair prejudice is also within the discretion of the trial court. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
"Unfair prejudice," under rule permitting exclusion of relevant evidence if its probative value is substantially outweighed by danger of unfair prejudice, means undue tendency to suggest decision on improper basis. Neb. Rev. Stat. § 27-403. State v.Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
The probative value of a piece of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the issues of the case. Neb. Rev. Stat. § 27-403 (Reissue 1995), State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998).
The admission of character evidence is largely left to the discretion of the trial court and will not be overruled on appeal absent a showing of an abuse of discretion. State v. Mowell, 267 Neb. 83, 267 N.W.2d 83 (2003).
All relevant evidence normally is admissible; evidence which is not relevant is not admissible. Neb. Rev. Stat. § 27-401. State v.Kinser, 259 Neb. 251, 609 N.W.2d 322 (2000); State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999). See also State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001).
Relevant evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, or misleading jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Neb. Rev. Stat. § 27-403 (Reissue 1995). State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998).
The failure to object to evidence at trial, even if the evidence was subject to a prior motion in limine, waives objection, and a party will not be heard to complain of the alleged error on appeal. State v.McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003); State v. Coleman, 239 Neb. 800, 478 N.W.2d 349 (1992).
An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground. State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003).
EVIDENCE OF OTHER ACTS: § 27-404(2)
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003). It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. State v.Eona, 248 Neb. 318, 534 N.W.2d 323(1995). See also State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).
Neb. Rev. Stat. § 27-404(2) (Reissue 1995) is a rule of inclusion, rather than exclusion, and permits the use of relevant bad acts for all purposes except to prove the character of a person in order to show that the person acted in conformity with that character. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996). See also State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003).
Section 27-404(2) permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show defendant's propensity or disposition to commit the crime charged. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002).
Because the exercise of judicial discretion is implicit in rule governing relevant evidence, it is within the discretion of the trial court to determine admissibility of evidence of other wrongs or acts, and trial court's decision will not be reversed absent abuse of that discretion. Neb. Rev. Stat. § 27-404(2); State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003).
To determine whether unfair prejudice existed in the admission of evidence under Neb. Rev. Stat. § 27-404(2) (Reissue 1995), an appellate court considers (1) whether the evidence was relevant, for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith; (2) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001).
Prior bad act evidence is evidence of other crimes, wrongs, or acts, aside from the crime charged, which tend to prove the character of a person and to show that he or she acted in conformity therewith when committing the charged crime. State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000).
Evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
Evidence admissible under the provisions of Neb. Rev. Stat. § 27-404(2) (Reissue 1995) is limited by Neb. Rev. Stat. § 27-403 (Reissue 1995), which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003).
Before prosecution may offer other crimes evidence under provision of statute providing evidence of other crimes, wrongs, or acts may be admissible for proof of motive, opportunity, and intent, it must clearly state the purpose for which evidence is offered; court must state the purpose for which it is received, and any limiting instruction must clearly, simply, and correctly instruct jury about the specific purposes for which it may consider evidence. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).
EXPERT WITNESSES:
The admission of expert testimony is ordinarily within the discretion of the trial court, and its ruling will be upheld in the absence of an abuse of discretion. State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).
A trial court's factual finding pursuant to Neb. Evid. R. 104(1) concerning a determination whether a witness qualifies as an expert under Neb. Evid. R. 702 will be upheld on appeal unless the trial court's ruling is clearly erroneous. State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997).
Helpfulness test for determining admissibility of expert testimony subsumes relevancy analysis; in making helpfulness determination, court must proceed on case-by-case basis. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).
Admission of expert testimony is ordinarily within discretion of trial court, and its ruling will be upheld in absence of abuse of discretion. State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).
Admissibility of expert testimony depends on whether specialized knowledge will assist trier of fact to understand the evidence or to determine a fact in issue. State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002).
To determine whether an expert's testimony is admissible pursuant to the Nebraska Evidence Rules, four preliminary questions must be answered: (1) Does the witness qualify as an expert under Neb. Evid. R. 702? (2) Is the expert's testimony relevant? (3) Will the expert's testimony assist the trier of fact to understand the evidence or determine a controverted factual issue? (4) Should the expert's testimony, even though relevant and admissible, be excluded in light of Neb. Evid. R. 403? State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997).
A witness may qualify as an expert by virtue of either formal training or actual practical experience in the field. State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
The right of an indigent defendant to the appointment of an expert witness at State expense generally rests in the discretion of the trial court. State v. George, 264 Neb. 26, 645 N.W.2d 777 (2002).
Daubert v. Merrell Dow Pharmaceuticals, Inc.,, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), does not apply to state court decisions; this state adheres to the standard for admitting expert scientific evidence accorded in Frye v. United States, 293 F.1013 (D.C. Cir. 1923). State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994).
Determination whether to admit expert testimony under helpfulness test will depend on court's evaluation of state of knowledge presently existing about subject of proposed expert testimony and court's appraisal of facts of case. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).
In those limited situation in which a court is faced with decision regarding the admissibility of expert opinion evidence, the trial judge must determine at the outset, whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue; this entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue, and once the validity of the expert’s reasoning or methodology has been satisfactorily established, any remaining questions regarding the manner in which that methodology was applied in a particular case will generally go to the weight of such evidence. Neb. Rev. Stat. § 27-702 (Reissue 1995). State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).
Under helpfulness standard for determining admissibility of expert testimony, court may exclude expert's opinion which is nothing more than expression of how trier of fact should decide case, and when expert's opinion on disputed issue is conclusion which may be deduced equally as well by trier of fact with sufficient evidence on issue, expert's opinion is superfluous and does not assist trier in understanding evidence or determining factual issue. State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998); State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).
An appellate court is not a superexpert and will not lay down categorically which factors and principles an expert may or may not consider; such matters go to the weight and credibility of the opinion itself and not to its admissibility. State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
If scientific, technical, or other specialized knowledge will assist trier of fact to understand evidence or to determine fact in issue, witness qualified as expert by knowledge, skill, experience, training, or education may testify thereto in form of opinion or otherwise. Neb. Rev. Stat. § 27-702. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).
In determining whether witness qualifies as expert, prior testimony is not prerequisite for expertise. Neb. Rev. Stat. §§ 27-104(1), 27-702; State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996).
EXTRADITION AND DETAINER:
A governor's grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (1) whether the extradition documents on their face are in order; (2) whether the petitioner has been charged with a crime in a demanding state; (3) whether the petitioner is the person named in the request for extradition; and (4) whether the petitioner is a fugitive. State v. Wallace, 240 Neb. 865, 484 N.W.2d 477(1992). To be deemed a fugitive, one must have been physically present in the demanding jurisdiction on the date when the crime is said to have been committed. Koenig v. Poskochil, 238 Neb. 118, 469 N.W.2d 523 (1991).
FACT FINDING:
Generally, an appellate court is to "accord weight" to findings of fact by the trial court where such findings are supported by the record. State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992).
Whether a trial court is required to make separate findings of fact and conclusions of law is a question of law. State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).
FACTUAL BASIS:
Factual basis for plea of guilty may be established by inquiry of prosecutor, interrogation of defendant, or examination of presentence report; preferred procedure for ascertaining whether factual basis exists to support guilty plea is to inquire directly of defendant. State v. Dodson, 250 Neb. 584, 550 N.W.2d 347 (1996).
FIFTH AMENDMENT:
Fifth Amendment’s privilege against self-incrimination is triggered only where there is a threat of self-incrimination. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).
The Fifth Amendment privilege against self-incrimination protects only against compulsion to engage in testimonial self-incriminating activity. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996).
The Fifth Amendment privilege against self-incrimination offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996).
A defendant may be compelled to produce a voice exemplar. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996).
In order to safeguard uncounseled individual's Fifth Amendment privilege against self-incrimination, suspects interrogated while in police custody must be appraised of certain rights; specifically, suspects must be told that they have right to remain silent, that anything they say may be used against them in court, and that they are entitled to presence of attorney, either retained or appointed, at interrogation. U.S. Const. amend. V. State v. Thomas, 267 Neb. 339, 673 N.W.2d 897 (2004).
FINALITY:
To create finality in a criminal case, it is necessary that there be a judgment of conviction, followed by a sentence. For the purpose of appeal in a criminal case, it is the sentence which is the judgment. State v. Foster, 239 Neb. 598, 476 N.W.2d 923 (1991). See also State v. Canady, 263 Neb. 566, 641 N.W.2d 13 (2002); State v. Hess, 261Neb. 368, 622 N.W.2d 891 (2001).
FINAL ORDERS:
Denial of plea in bar is final order for purposes of determining time in which defendant has to file notice of appeal. Neb. Rev. Stat. § 25-1902. State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996). See also State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001); State v. Trevino, 251 Neb. 344, 556 N.W.2d 638 (1996).
A ruling denying a plea in bar on double jeopardy grounds is a final, appealable order because it is a special proceeding that affects a substantial right. State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).
Rendition of order takes place at time trial court makes oral pronouncement and accompanies that pronouncement with notation on trial docket; failing notation on trial docket, order is rendered at time some written notation of it is filed in records of court. State v. Trevino, 251 Neb. 344, 556 N.W.2d 638 (1996).
If party knows of ruling made in open court and noted on trial docket, date of filing of ruling with clerk of court is not material for purpose of determining timeliness of notice of appeal therefrom. State v. Trevino, 251 Neb. 344, 556 N.W.2d 638 (1996).
The three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered. State v. Lauck, 261Neb. 145, 621 N.W.2d 515 (2001).
A substantial right is affected, for purposes of making an order final and appealable, if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing. Neb. Rev. Stat. § 25-1902 (Reissue 1995). State v. Lauck, 261Neb. 145, 621 N.W.2d 515 (2001). See also State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
"Special proceeding" means every civil statutory remedy which is not encompassed in chapter 25 of the Nebraska Revised Statutes. Neb. Rev. Stat. § 25-101 et seq. State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996).
Under Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 1994), the State may request review of an adverse decision or ruling in a criminal case after a final order or judgment in the criminal case has been entered. The purpose of this procedure is to provide an authoritative exposition of the law to serve as precedent in future cases. State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996).
For purpose of appeal, an order entered during the pendency of a criminal cause is final only when no further action is required to completely dispose of the cause pending. State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000).
A judgment of the district court on appeal from a final order of an inferior court, which leaves nothing further to be done in the district court, is a final order, even though the case is remanded for further proceedings below. State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000).
Where a motion to discharge on speedy trial grounds is submitted to a trial court, that motion is inferentially denied where the trial court proceeds to trial without expressly ruling on the motion; at that point, the denial of the defendant’s motion is a final, appealable order, and the defendant must secure his or her rights to appellate review by a timely notice of appeal. State v. Tyma, 264 Neb. 712, 651 N.W.2d 582 (2002); State v. Ward, 257 Neb. 377, 597 N.W.2d 614 (1999).
FORFEITURE:
Appellate review concerning the sufficiency of the evidence to forfeit a motor vehicle to the State under Neb. Rev. Stat. § 28-431 (Reissue 1989) should not be treated differently than review of the sufficiency of the evidence in a criminal case. State v. One 1985 Mercedes 190D Automobile, 247 Neb. 335, 526 N.W.2d 657 (1995).
GROUNDS FOR TRIAL COURT'S DECISION:
Where the record adequately demonstrates that the decision of a trial court is correct, although such correctness is based on a ground or reason different from that assigned by the trial court, an appellate court will affirm. Jessen v. Malhotra, 266 Neb. 393, 665 N.W.2d 586 (2003); State v.Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002).
HABITUAL CRIMINAL
A critical feature of a habitual criminal advisement is that a defendant entering a guilty plea be informed of the possibility that an increased sentence will be imposed if the defendant is found to be a habitual criminal under the habitual criminal statute. Neb. Rev. Stat. § 29-2221 (Reissue 1995). State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004).
A showing of presence of counsel at sentencing will not alone establish the state’s case that a defendant’s prior convictions were counseled, for purposes of the habitual offender statute. Neb. Rev. Stat. 29-2111 (Reissue 1995). State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004).
A critical feature of a habitual criminal advisement is that a defendant entering a guilty plea be informed of the possibility that an increased sentence will be imposed if the defendant is found to be a habitual criminal under the habitual criminal statute. Neb. Rev. Stat. § 29-2221 (Reissue 1995). State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004).
HARMLESS ERROR:
Harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence a jury in a verdict adverse to a substantial right of the defendant. State v. Freeman, 267 Neb. 737, __ N.W.2d __ (2004). See also State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
"Harmless error" review looks to basis on which jury actually rested its verdict; inquiry is not whether in trial that occurred without error guilty verdict would surely have been rendered but, rather, whether actual guilty verdict rendered in questioned trial was surely unattributable to error. State v. Freeman, 267 Neb. 737, __ N.W.2d __ (2004); State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003); State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003).
It is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992). See also State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000); State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
Not all trial errors, even those of constitutional magnitude, entitle an accused to a reversal of an adverse trial result; it is only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt, which requires that a conviction be set aside. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002). See also State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000)
In the trial of a criminal case, erroneous admission of evidence which is not cumulative may constitute harmless error beyond a reasonable doubt, when a defendant's conviction is supported by overwhelming evidence which has been properly admitted or admitted without objection. State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000).
In jury trial of criminal case, erroneous evidential ruling results in prejudice to defendant unless state demonstrates that error was harmless beyond reasonable doubt. State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003); State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002).
In determining whether error in admitting evidence was harmless, an appellate court bases its decision on the entire record in determining whether the evidence materially influenced the jury in a verdict adverse to the defendant. State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001); State v. McLemore, 261 Neb. 452 , 623 N.W.2d 315 (2001); State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).
While "trial error," can be harmless, "structural error," that is, error which vitiates all jury's factual findings, cannot be harmless. State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996).
There are two types of constitutional infirmities: trial errors and structural errors, and structural errors are those errors affecting the framework within which the trial proceeds, that they demand automatic reversal. State v. Lowe, 267 Neb. 782, ___ N.W.2d ___ (2004).
` An error in admitting or excluding evidence in a criminal trial, whether of a constitutional magnitude or otherwise, is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).
HEARSAY:
“Hearsay” is a statement, other than one made by declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Neb. Rev. Stat. § 27-801(3) (Reissue 1995). State v. Clark, 255 Neb. 1006, 588 N.W.2d 184 (1999).
An appellate court, reviewing a trial court's ruling on admissibility under Neb. Evid. R. 804(2)(e), will affirm the trial court's ruling unless the trial court has abused its discretion concerning admissibility. Neb. Rev. Stat. § 27-804(2)(e) (Reissue 1995). State v. Toney, 243 Neb. 237, 498 N.W.2d 544 (1993). See also State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
A statement of a party defendant is not hearsay. Neb. Rev. Stat. § 27-801(4)(b)(i). Neb. Rev. Stat. § 27-801(4)(b)(i) (Reissue 1995). State v. Boham, 233 Neb. 679, 447 N.W.2d 48