State v. Davis , 310 Neb. 865 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/18/2022 01:09 AM CDT
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310 Nebraska Reports
STATE v. DAVIS
Cite as 310 Neb. 865State of Nebraska, appellee, v.
Raymond T. Davis, appellant.
___ N.W.2d ___
Filed February 4, 2022. No. S-21-224.
1. Indictments and Informations. Whether an information is fatally
defective is a question of law.
2. Judgments: Appeal and Error. Appellate courts independently review
questions of law decided by a lower court.
3. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: 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. The relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
4. Indictments and Informations: Appeal and Error. An information
first questioned on appeal must be held sufficient unless it is so defec-
tive that by no construction can it be said to charge the offense for
which the accused was convicted.
5. Indictments and Informations. A complaint or information is fatally
defective only if its allegations can be true and still not charge a crime.
6. ____. An information must allege each statutorily essential element of
the crime charged, expressed in the words of the statute which prohibits
the conduct charged as a crime or in language equivalent to the statutory
terms defining the crime charged.
7. Witnesses: Impeachment. Generally, the credibility of a witness may
be attacked by any party, including the party who called the witness.
8. Trial: Verdicts: Appeal and Error. Harmless error review looks to the
basis on which the trier of fact actually rested its verdict; the inquiry
is not whether in a trial that occurred without the error a guilty verdict
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STATE v. DAVIS
Cite as 310 Neb. 865would surely have been rendered, but, rather, whether the actual guilty
verdict rendered in the questioned trial was surely unattributable to
the error.
Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Affirmed.
Kelly S. Breen, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Following a robbery that resulted in the victim’s death,
Raymond T. Davis was convicted of three felonies: first degree
murder, conspiracy to commit robbery, and use of a deadly
weapon other than a firearm to commit a felony. On direct
appeal, Davis challenges the sufficiency of the information’s
charge of conspiracy, the sufficiency of the evidence to convict
him, and the State’s alleged impeachment of its own witness.
Discerning no basis for reversal, we affirm.
BACKGROUND
Information.
In 2018, Brent Quigley was found dead, apparently from
stab wounds sustained during a home robbery. Following an
investigation, Davis was among multiple people charged in the
district court for Sarpy County in connection with Quigley’s
death.
Davis was charged by information with the following fel­
onies: first degree murder, in violation of Neb. Rev. Stat.
§ 28-303 (Cum. Supp. 2020); robbery, in violation of Neb.
Rev. Stat. § 28-324(1) (Reissue 2016); conspiracy to commit
robbery, in violation of Neb. Rev. Stat. § 28-202 (Cum. Supp
2020); and use of a deadly weapon other than a firearm to
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STATE v. DAVIS
Cite as 310 Neb. 865commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a)
(Reissue 2016).
Relevant here, the conspiracy charge stated:
COUNT 3: CONSPIRACY TO COMMIT ROBBERY
On or about the 24th day of June, 2018, . . . Davis,
with the intent to promote or facilitate the commission of
a felony, did agree with one or more persons that they or
one or more of them would engage in or solicit the con-
duct or cause or solicit the result specified by the defini-
tion of the offense of Robbery, and he or another person
with whom he conspired did commit an overt act, to-wit:
Robbery in pursuance of the conspiracy, in violation of
Section 28-202 . . . (CLASS II FELONY)[.]
Before trial, the district court dismissed the robbery charge on
the State’s motion.
Evidence of Charged Crimes.
At Davis’ jury trial, the State presented evidence that Quigley
was discovered on June 26, 2018, dead in his home amid signs
of a struggle. An autopsy later determined that he had sustained
numerous stab wounds, resulting in his death about 3 days
before his body was found.
The investigation led to the arrests of Christopher Reagan
and Alisia Cooke. Based on interviews with Reagan and Cooke,
investigators identified Davis as an additional suspect. Davis
was subsequently arrested in another state.
At Davis’ trial, Cooke testified for the State. She testi-
fied that a week before Quigley’s murder, she and Reagan
were “trying to come up with ways to come up with money.”
After discussing various options, they settled on robbery.
Cooke testified that at some point, Davis joined the discus-
sion. According to Cooke, she talked to Reagan and Davis
about her starting a social media account to obtain invitations
to men’s homes to exchange sex for money. Cooke testified
that the three of them also discussed, as part of their plan, that
once she gained access to a would-be victim’s residence, she
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STATE v. DAVIS
Cite as 310 Neb. 865would use text messaging to inform Reagan and Davis about
the layout, any valuables, and whether there were other people
or animals inside.
Cooke testified that on June 24, 2018, Quigley contacted
her via the social media account Cooke set up to carry out
the robbery plans. Quigley asked Cooke to have sex and get
high with him in exchange for money. Cooke testified that she
told Reagan and Davis that she was going to Quigley’s house
and that, based on her knowledge of Quigley, “if they wanted
to rob somebody, that this is going to be the person.” Cooke
testified that both Reagan and Davis agreed to go with her to
Quigley’s house to rob him.
Cooke testified that she, Reagan, and Davis rode in the
same vehicle to Quigley’s neighborhood. While parked down
the street from Quigley’s residence, together, they finalized
their plans. According to Cooke, they all willingly agreed that
she would enter Quigley’s house, text message Reagan and
Davis to let them know she was inside, and make sure the
door remained unlocked so that Reagan and Davis could knock
Quigley unconscious and restrain him. While Cooke was still
in the vehicle, Reagan and Davis looked for objects to use “to
help knock [Quigley] out,” and a blue “Mag-Lite” flashlight
was placed in a backpack.
Cooke testified that after Quigley let her in, they began
to use drugs. According to records received in evidence and
Cooke’s testimony, Cooke exchanged social media messages
with Davis shortly before 9 a.m on June 24, 2018. In the mes-
sages, Davis told Cooke to let him and Reagan know when
she was inside, confirmed the location of Quigley’s dog, and
instructed Cooke to “[t]ake him to the bedroom.” Cooke testi-
fied that she took Quigley to the bedroom and that Reagan and
Davis entered through the unlocked door, as planned. Reagan
then attacked Quigley in the bedroom. Cooke testified that
at one point, she saw Davis holding “a kitchen knife — or a
butcher block.” Cooke went to another area of the house to use
drugs; from there, she heard sounds of a struggle, including
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STATE v. DAVIS
Cite as 310 Neb. 865someone yelling, “‘Ow,’” and someone saying, “‘Get him.
Hold him.’”
Cooke testified that after a “little while,” Reagan and Davis
checked on Cooke, and the three remained in the house for a
time, using drugs, while Quigley was lying on the floor. Cooke
testified that Reagan and Davis stole several items from the
house, including drugs and electronics, which the three divided
and used or sold. In subsequent social media messages to
Cooke, Davis expressed interest in keeping a video projector
and a knife.
Cooke was arrested soon after. At trial, she acknowledged
that she initially “lied to” investigators about “[p]retty much
everything,” but testified that she eventually told them “what
really happened.” Cooke also admitted to lying in an earlier
deposition about her history of prostitution and acknowledged
her criminal history involving dishonesty. She also testified that
she used methamphetamine daily prior to her arrest. Cooke’s
testimony at Davis’ trial was part of her plea agreement for
charges related to Quigley’s death.
In addition to the social media messages Davis exchanged
with Cooke while she was inside Quigley’s residence, the
State presented text messages that corroborated Cooke’s ver-
sion of events, including text messages between Cooke and
Reagan referring to Davis’ involvement in the plan. The State
also presented evidence that there was activity from Davis’,
Cooke’s, and Reagan’s cell phones on cell towers in the vicin-
ity of Quigley’s house on June 24, 2018, between 10:30 and
11:02 a.m.
DNA testing could not exclude Reagan, Davis, Cooke, or
Quigley as contributors to the DNA profiles obtained from
swabs of a knife found under Quigley’s leg. (Investigators
determined this knife was not the murder weapon; their inves-
tigation showed that Reagan and Cooke gave the knife used to
kill Quigley to an acquaintance for disposal.) Quigley could
not be excluded as a DNA contributor to bloodstains found
on jeans discovered in the vehicle Davis was using at the time
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Cite as 310 Neb. 865of his arrest; the jeans were in a backpack along with paper-
work belonging to Davis. Quigley could not be excluded as a
DNA contributor to suspected blood evidence on a blue “Mag-
Lite” flashlight found at the crime scene.
State’s Impeachment of Own Witness.
The State called Julie Skalberg to testify at trial. Skalberg
identified herself as a friend of Davis’ mother. She testified that
on June 26, 2018, Davis and a female companion called her,
and later, they arrived at her residence in Des Moines, Iowa.
Davis communicated to Skalberg that he wanted to take her up
on her previous offer to help him “get a fresh start of things.”
It is apparent from the record that, with respect to several sub-
jects, Skalberg did not testify as the State anticipated.
On direct examination, the prosecutor asked Skalberg if
Davis told her where he was coming from, and Skalberg
answered, “He did not.” The prosecutor then produced a copy
of Skalberg’s handwritten statement to law enforcement and
asked her to review its contents. Skalberg reviewed the state-
ment, which was not offered or received in evidence, and then
stated, “I thought that [Davis] had told me that he had c[o]me
from Council Bluffs, [Iowa,] but I cannot 100 percent say that’s
what — where he told [me] he came from. I just had assumed
that. They never really gave me a direct point of where they
were coming from.”
After this statement, the prosecutor was about to continue
questioning Skalberg by quoting from her statement to police,
when defense counsel objected on the grounds that the state-
ment to police was hearsay. The prosecutor said, “I’m actually
impeaching her now, because I just showed her a document
that she said was her statement.” Defense counsel responded
that the State had not “shown a need” to impeach its own wit-
ness and that “there has been nothing inculpatory said by her,
nothing exculpatory said by her.” The district court overruled
Davis’ objection.
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STATE v. DAVIS
Cite as 310 Neb. 865The prosecutor continued questioning Skalberg, “Isn’t it true
that, in your statement, you wrote that [Davis and his compan-
ion] both said that they had — that things were getting crazy
in Council Bluffs?” Skalberg agreed that was what she said and
clarified that Davis and his companion “really didn’t” tell her
where they had come from, “[t]hey just said that things were
getting crazy over there . . . [i]n Council Bluffs.”
The prosecutor continued direct examination, and Skalberg
testified that while Davis was at her residence, she gave him
a backpack. When the prosecutor asked whether Skalberg
remembered previously saying that she never gave Davis
a backpack, the district court sustained defense counsel’s
objection based on improper impeachment, observing that the
prosecutor had not used the statement to refresh Skalberg’s
recollection.
Skalberg further recalled on direct examination that she saw
Davis break down and cry a couple of times during his 2-day
stay at her residence. Skalberg testified that Davis told her he
was crying because “things were getting scary and crazy, and
he was fearful.” Over defense counsel’s objections based on
improper impeachment, Skalberg testified that she did not tell
the police the information she testified to about the backpack
and Davis’ crying.
Verdicts and Sentencing.
The jury found Davis guilty of first degree murder, con-
spiracy to commit robbery, and use of a deadly weapon other
than a firearm to commit a felony. The district court accepted
the verdicts and sentenced Davis accordingly.
Davis now appeals.
ASSIGNMENTS OF ERROR
On appeal, Davis assigns three errors. He contends that
the information’s charge of conspiracy failed to adequately
allege that Davis committed an overt act in furtherance of the
conspiracy and that the evidence was insufficient to support
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STATE v. DAVIS
Cite as 310 Neb. 865his convictions. He also claims that the district court erred by
allowing the State to impeach Skalberg with her prior hearsay
statement.
STANDARD OF REVIEW
[1,2] Whether an information is fatally defective is a ques-
tion of law. See State v. Craig, 181 Neb. 8, 146 N.W.2d 744(1966). Appellate courts independently review questions of law
decided by a lower court. State v. Harris, 307 Neb. 237, 948
N.W.2d 736 (2020).
[3] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: 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. State v. Williams, 306 Neb.
261, 945 N.W.2d 124 (2020). The relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Id.ANALYSIS
Was Information Fatally Defective?
We begin with Davis’ claim that the count of the informa-
tion charging him with conspiracy to commit robbery was
fatally defective. We have held that objections to the form
or content of an information should be raised by a motion to
quash. State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).
Although our record in this case provides no indication that
Davis challenged the information by filing a motion to quash
in the district court, we have held that generally, defects or
omissions in an indictment or information “which are of such
a fundamental character as to make the indictment wholly
invalid are not subject to waiver” and thus may be challenged
for the first time on appeal. State v. Coleman, 209 Neb. 823,
825-26, 311 N.W.2d 911, 912 (1981). As we will explain
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STATE v. DAVIS
Cite as 310 Neb. 865below, however, only a limited category of defects or omis-
sions meet this standard.
[4-6] An information first questioned on appeal must be held
sufficient unless it is so defective that by no construction can
it be said to charge the offense for which the accused was con-
victed. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020).
A complaint or information is fatally defective only if its alle-
gations can be true and still not charge a crime. Id. An informa-
tion must allege each statutorily essential element of the crime
charged, expressed in the words of the statute which prohibits
the conduct charged as a crime or in language equivalent to the
statutory terms defining the crime charged. Id.Section 28-202(1) provides that a person is guilty of the
crime of criminal conspiracy if, with intent to promote or
facilitate the commission of a felony:
(a) He [or she] agrees with one or more persons that
they or one or more of them shall engage in or solicit the
conduct or shall cause or solicit the result specified by the
definition of the offense; and
(b) He [or she] or another person with whom he [or
she] conspired commits an overt act in pursuance of the
conspiracy.
Given this statutory definition, an information charging the
crime of criminal conspiracy must expressly allege one or more
overt acts. See State v. Marco, 230 Neb. 355, 432 N.W.2d 1(1988). See, also, Neb. Rev. Stat. § 29-2014 (Reissue 2016).
In this case, Davis contends that the information failed to do
so. Although he acknowledges that the information identified
an overt act—“Robbery[,] in pursuance of the conspiracy, in
violation of [§] 28-202”—he takes the position that the State
may not, as it did here, allege that robbery was both the object
of the conspiracy and an overt act committed in pursuance
thereof. We disagree.
In support of his argument, Davis relies on State v. McKay,
No. A-92-057, 1993 WL 13458 (Neb. App. Jan. 26, 1993) (not
approved for permanent publication). In that case, the criminal
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Cite as 310 Neb. 865conspiracy charge asserted that the defendant agreed with one
or more other people that they would “‘harvest more than one
pound of marijuana’” and that the defendant or one or more
of the other alleged conspirators committed “‘an overt act
in pursuance of the conspiracy, to-wit: Defendant along with
[another person] conspired together to harvest and possess
more than one pound of marijuana.’” Id. at *1. The Nebraska
Court of Appeals found that the information was fatally defec-
tive. It explained that the information impermissibly identified
the alleged conspirators’ act of “conspir[ing] together” as the
overt act. Id. at *2.
This case is distinguishable from McKay. While McKay
found that a criminal conspiracy charge may not allege that
a defendant agreed with others to commit a criminal offense
and then identify that agreement as the overt act in furtherance
of the conspiracy, the information at issue here did not do so.
Rather, it alleged that Davis agreed with others to commit rob-
bery and then identified robbery as an overt act in furtherance
of that agreement.
Davis does not direct us to any cases in which a court has
held that an information cannot allege that the same crime was
both the object of the conspiracy and an overt act commit-
ted in pursuance thereof. And in fact, our recent decision in
State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020), runs
to the contrary. In Theisen, the defendant faced conspiracy
charges for the underlying offenses of delivery or distribution
of hydrocodone and tramadol. The overt act alleged was “‘buy-
ing and/or selling [hydrocodone and tramadol].’” Id. at 601,
946 N.W.2d at 685. The defendant argued that to satisfy the
overt act requirement, the State was required to allege an overt
act other than the crime the parties conspired to commit. We
rejected the defendant’s argument and found the information’s
allegations that the defendant was “‘buying and/or selling
[hydrocodone and tramadol]’” were sufficient. Id.
To the extent our decision in Thiesen left any room for
Davis to argue that the conspiracy charge in this case was
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STATE v. DAVIS
Cite as 310 Neb. 865fatally defective, we would still disagree. One purpose of
an overt act requirement is to ensure that criminal liability
attaches only when an agreement to commit a crime has
advanced beyond “mere talk.” U.S. v. Gigante, 982 F. Supp.
140, 169 (E.D.N.Y. 1997). We have also recognized that an
overt act “tends to show a preexisting conspiracy and manifests
an intent or design toward accomplishment of a crime.” State
v. Heitman, 262 Neb. 185, 198, 629 N.W.2d 542, 553 (2001).
When one or more conspirators have actually committed the
offense that is the object of the conspiracy, the agreement has
certainly advanced beyond the discussion stage and there has
been an unmistakable manifestation of an intent to accomplish
the crime.
Given the foregoing, it is not surprising that consensus
appears to exist among courts and commentators that pros-
ecutors may prove that a defendant committed an overt act in
furtherance of a conspiracy by demonstrating the commission
of the substantive offense that was the object of the conspiracy.
See, Word v. United States, 589 F. Supp. 806, 807 (S.D.N.Y.
1984) (“the government is free to enumerate and prove, as
overt acts to a conspiracy count, completed substantive crimes
which were the object of the conspiracy”); State v. Less, 170
W. Va. 259, 265, 294 S.E.2d 62, 67 (1981) (“substantive crime
which is the object of the conspiracy can be proven as the
overt act”); People v. Glubo, 5 N.Y.2d 461, 477, 158 N.E.2d
699, 709, 186 N.Y.S.2d 26, 40 (1959) (“[w]hile the overt act
need not be of itself a criminal act and need not constitute the
very crime that is the object of the conspiracy . . . nevertheless
it may well be, and frequently is” (internal quotation marks
omitted) (emphasis omitted)); 2 Wayne R. LaFave, Substantive
Criminal Law § 12.2(b) at 375 (3d ed. 2018) (“the overt act
may be the substantive offense which was the object of the
conspiracy”). We thus see no reason why the State may not,
as it did here, satisfy the overt act requirement by alleging the
substantive offense which was the object of the conspiracy as
the overt act.
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Cite as 310 Neb. 865Sufficiency of Evidence.
We turn now to Davis’ contention that the evidence was not
sufficient to support his convictions. When such a challenge
is made, our inquiry is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Williams, 306 Neb. 261,
945 N.W.2d 124 (2020). Davis makes no assertion that the
State failed to present evidence of the essential elements of the
charged offenses. Instead, Davis argues that we cannot base
our assessment of the sufficiency of the evidence on Cooke’s
testimony because of her past history of dishonesty regard-
ing facts material to Davis’ criminal proceeding. And with-
out alleging prosecutorial misconduct, Davis submits that the
State’s reliance on Cooke’s testimony deprived him of a fair
trial and due process.
Davis insists that he is not asking this court to reweigh the
evidence, but we cannot escape the conclusion that this is
precisely what Davis wants us to do. And “that is not the role
of an appellate court.” State v. Jones, 296 Neb. 494, 499, 894
N.W.2d 303, 307 (2017). The credibility and weight of witness
testimony are for the jury to determine, and witness credibility
is not to be reassessed on appellate review. State v. Wheeler,
308 Neb. 708, 956 N.W.2d 708 (2021). Cooke’s testimony, with
all its credibility issues, was presented to the jury for consid-
eration, and we cannot ignore it. When we evaluate this testi-
mony along with the other evidence at trial as our standard of
review requires, without determining its weight or credibility,
the basis for Davis’ assigned error on this point crumbles.
The jury was tasked with deciding whether to convict Davis
of first degree murder, criminal conspiracy to commit rob-
bery, and use of a deadly weapon other than a firearm to
commit a felony. See, § 28-303; §§ 28-202 and 28-324(1);
§ 28-1205(1)(a). The crime of first degree murder can entail
felony murder, that is, killing another person in the perpe-
tration or attempt to perpetrate a robbery or other specified
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Cite as 310 Neb. 865crimes. See, § 28-303(2); State v. Bjorklund, 258 Neb. 432, 604
N.W.2d 169 (2000), abrogated on other grounds, State v. Mata,
275 Neb. 1, 745 N.W.2d 229 (2008). Viewing the evidence in
the light most favorable to the State and considering the statu-
tory elements of the crimes charged, we conclude there was
sufficient evidence for a rational trier of fact to convict Davis
on all counts.
The jury heard Cooke’s testimony that Davis participated
with Cooke and Reagan in a plan to go to Quigley’s home and
use force to take Quigley’s property. Davis helped gather objects
to use to beat Quigley. Once Cooke was inside Quigley’s resi-
dence, Davis used social media messages with Cooke to ensure
the scheme went according to plan. While Cooke interacted
with Quigley, Davis entered Quigley’s residence with Reagan.
At some point, Cooke observed Davis holding “a kitchen knife
— or a butcher block,” and after going to another area of the
house, she heard sounds of a struggle. The next time she saw
Quigley, he was lying on the floor. As planned, Cooke, Reagan,
and Davis took items from Quigley’s house. In social media
messages to Cooke, Davis expressed interest in keeping par-
ticular items that they had taken.
Quigley was later found dead from stab wounds. Cooke’s
version of the events that preceded and followed Quigley’s
death was corroborated by social media messages, text mes-
sages, DNA evidence, and other circumstantial evidence. Cell
towers near Quigley’s house detected activity from Davis’,
Cooke’s, and Reagan’s cell phones around the time other
evidence showed they were there. The State presented the
social media messages that Davis and Cooke exchanged just
before Davis and Reagan entered Quigley’s residence and
afterward. DNA evidence showed signs of Quigley’s DNA on
a blue “Mag-Lite” flashlight found at his house, the same type
of flashlight Davis helped gather in anticipation of beating
and robbing Quigley. DNA testing could not exclude Reagan,
Davis, Cooke, or Quigley as contributors to the DNA profiles
obtained from swabs of a knife found underneath Quigley.
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Cite as 310 Neb. 865Nor could Quigley be excluded as a DNA contributor to blood-
stains found on Davis’ jeans.
Abiding by our standard of review, we conclude that the
evidence was sufficient to support Davis’ convictions and find
no merit to this assignment of error.
Impeachment of Own Witness.
[7] Finally, Davis assigns that the prosecution improperly
impeached its own witness, Skalberg, with her prior statement
to police that Davis and his companion told her things were
“getting crazy” in Council Bluffs, Iowa. Generally, the cred-
ibility of a witness may be attacked by any party, including
the party who called the witness. State v. Dominguez, 290 Neb.
477, 860 N.W.2d 732 (2015). One means of attacking the cred-
ibility of a witness is by showing inconsistency between his or
her testimony at trial and what he or she said on previous occa-
sions, but a party cannot impeach his or her own witness with-
out limitation. See id. Impeachment of a party’s own witness
by means of a prior statement may not be employed as a “mere
subterfuge” or for the “primary purpose of placing before the
jury substantive evidence which is not otherwise admissible”
when the party is aware prior to calling the witness that the
witness will not testify consistent with the witness’ prior state-
ment. Id. at 491-92, 860 N.W.2d at 746 (internal quotation
marks omitted) (emphasis omitted). This rule “focuses upon
the content of the witness’ testimony as a whole” so that “if the
witness’ testimony is important in establishing any fact of con-
sequence significant in the context of the litigation, the witness
may be impeached as to any other matter testified to by means
of a prior inconsistent statement.” Id. at 492, 860 N.W.2d at
746 (internal quotation marks omitted).
Davis asserts that the State should not have been allowed
to impeach Skalberg with prior statements to police about
Council Bluffs, because her testimony as a whole was “trivial.”
Brief for appellant at 12. However, we question whether the
State actually impeached Skalberg on this issue with a prior
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Cite as 310 Neb. 865inconsistent statement. Here, Skalberg readily affirmed what
she had told police and then provided further explanation.
Skalberg initially testified that Davis did not tell her where he
had come from. After reviewing her prior statement to police,
Skalberg testified that she believed Davis had told her that he
had come from Council Bluffs, but she was not certain, and
that it was possible she only assumed he was coming from
there. She then stated that Davis and his companion never gave
her “a direct point of where they were coming from.” Over
Davis’ objection alleging improper impeachment, the State
was permitted to continue, “Isn’t it true that, in your statement
[to police], you wrote that [Davis and his companion] both
said that they had — that things were getting crazy in Council
Bluffs?” Skalberg affirmed that she had made that statement
to police, but clarified that Davis and his companion “really
didn’t” tell her where they had come from; “[t]hey just said
that things were getting crazy . . . [i]n Council Bluffs.”
[8] Even assuming without deciding that the foregoing
exchange was improper impeachment by the State, we con-
clude that any such error was harmless and not grounds for
reversal. Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty ver-
dict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error. State v. Figures, 308 Neb. 801,
957 N.W.2d 161 (2021). Davis claims that the jury should not
have heard Skalberg’s statement to police that Davis and his
companion said things were “getting crazy” in Council Bluffs.
But we cannot discern how this statement had any bearing on
the jury’s verdicts. We therefore conclude that the jury’s guilty
verdicts were surely unattributable to any impeachment of
Skalberg with her prior statement.
CONCLUSION
Finding no merit to the errors alleged by Davis, we affirm.
Affirmed.