State v. Vandever ( 2014 )

Nebraska Advance Sheets
STATE v. VANDEVER 807
Cite as 287 Neb. 807State of Nebraska, appellee, v.
Wesley S. Vandever, appellant.
___ N.W.2d ___
Filed April 4, 2014. No. S-12-1023.
1. Trial: Juries: Evidence: Appeal and Error. A trial court’s decision to allow a
jury during deliberations to rehear or review evidence, whether such evidence
is testimonial or nontestimonial, is reviewed by an appellate court for an abuse
of discretion.
2. Juries: Evidence. Heightened procedures are required when a court considers a
jury’s request under Neb. Rev. Stat. § 25-1116 (Reissue 2008) to rehear testimony
that was presented in the form of an audio or video recording.
3. Evidence: Case Disapproved. To the extent State v. Dixon, 259 Neb. 976,
614 N.W.2d 288 (2000), indicated that the heightened procedures set forth
therein were to be used in connection with nontestimonial recorded evidence, it
is disapproved.
4. Trial: Testimony: Evidence: Words and Phrases. “Testimony” for purposes
of Neb. Rev. Stat. § 25-1116 (Reissue 2008) encompasses evidence authorized
as “testimony” under Neb. Rev. Stat. § 25-1240 (Reissue 2008), that is, as live
testimony at trial by oral examination or by some substitute for live testimony,
including but not limited to, affidavit, deposition, or video recording of an exami-
nation conducted prior to the time of trial for use at trial.
Appeal from the District Court for Scotts Bluff County:
Randall L. Lippstreu, Judge. Affirmed.
Todd D. Morten, of Island & Huff, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Wesley S. Vandever appeals his conviction in the district
court for Scotts Bluff County for possession of a controlled
substance, methamphetamine. Vandever claims that the court
erred when, during deliberations, it granted the jury’s request to
rehear a recording of an investigator’s interview of Vandever.
We find no error and, accordingly, affirm Vandever’s convic-
tion and sentence.
Nebraska Advance Sheets
808 287 NEBRASKA REPORTS
STATEMENT OF FACTS
In April 2012, drug task force investigators executed a
search warrant at a house in Scottsbluff, Nebraska. Four indi-
viduals, including Vandever, were inside the house at the
time of the search. Investigators found Vandever and two of
the others sleeping on the floor of a room in the basement.
They also found bags of methamphetamine and other items,
including a “meth” pipe and a marijuana pipe, located near
where Vandever was sleeping. Vandever was arrested, and he
was taken to the Scottsbluff Police Department where he was
interviewed by one of the investigators who had conducted
the search.
The investigator who interviewed Vandever testified at trial
regarding the search and the interview. In connection with
the investigator’s testimony, the court admitted into evidence
a compact disc containing an edited audio recording of the
interview. Vandever did not object to admission of the record-
ing, and the recording, which was approximately 8 minutes
in length, was played for the jury. In the recorded interview,
the investigator questioned Vandever regarding, inter alia,
ownership of items found near him in the basement room.
Vandever admitted that the marijuana pipe was his but denied
that the “meth” pipe and the bags of methamphetamine were
his. The investigator then asked Vandever, “Did you use last
night? . . . Did you smoke a little?” Vandever replied, “Not a
lot. Because obviously I was sleeping.” Vandever continued
that he generally did not use a lot and that he was working on
getting clean.
During deliberations, the jury sent a written note to the court
stating, “Can we please listen to the 8 minute . . . interview
again?” The note was signed by the presiding juror. The court
wrote a response on the note stating, “I will allow to hear
Exh 16 (C.D of the interview) only one more time.” After the
judge’s signature, it stated, “P.S The bailiff will be present dur-
ing the playing of the C.D. Do not resume your discussions
until you return to jury room.” In a journal entry, the court
stated that it had “honored the jury’s written request to rehear
Exhibit 16 ([the investigator’s] interview of [Vandever]) over
Defense Counsel’s objection.”
Nebraska Advance Sheets
STATE v. VANDEVER 809
Cite as 287 Neb. 807The jury thereafter returned a verdict finding Vandever
guilty of possession of methamphetamine. The court later sen-
tenced Vandever to imprisonment for 300 days and payment of
a $100 fine.
Vandever appeals his conviction.
ASSIGNMENT OF ERROR
Vandever claims that the court erred when it failed to hold
a hearing to determine the purpose of the jury’s request, failed
to make explicit findings, and allowed the jury to rehear the
recording of the interview.
STANDARD OF REVIEW
[1] In cases involving testimonial evidence, we have stated
that the decision to allow a jury to review or rehear evi-
dence during deliberations is a matter within the trial court’s
discretion. State v. Halsey, 232 Neb. 658, 441 N.W.2d 877(1989). In cases involving nontestimonial evidence, we have
stated that trial courts have broad discretion in allowing
the jury unlimited access to properly received exhibits that
constitute substantive evidence. State v. Pischel, 277 Neb.
412, 762 N.W.2d 595 (2009). Therefore, a trial court’s deci-
sion to allow a jury during deliberations to rehear or review
evidence, whether such evidence is testimonial or nontes-
timonial, is reviewed by an appellate court for an abuse
of discretion.
ANALYSIS
Vandever claims that the court erred when it allowed the
jury to rehear the recording of the investigator’s interview
of Vandever during the jury’s deliberations without adher-
ing to the heightened procedures set forth in State v. Dixon,
259 Neb. 976, 614 N.W.2d 288 (2000), disapproved on other
grounds, State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012)
(Dixon). Vandever specifically contends that the recording was
testimonial evidence and that under the heightened procedures
described in Dixon, when the jury seeks to rehear testimonial
evidence, the court is required to conduct a hearing, make
findings regarding the reason for the jury’s request, and weigh
the probative value of replaying the recording against the
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danger of undue emphasis, before it can properly grant the
jury’s request to rehear the recording.
As to the legal principles under consideration, the State
argues in response that our reasoning in Dixon was flawed
and that we should overrule Dixon. The State contends that
the recording at issue in Dixon—a recording of a conversa-
tion between the defendant and a codefendant in which the
defendant admitted to the crime charged—was not testimonial
evidence but was instead substantive evidence of the crime
and that therefore, the heightened procedures we espoused in
Dixon for testimonial evidence were not applicable to the non-
testimonial evidence in Dixon. As to the present case, the State
argues that the recording at issue was substantive evidence
not subject to the heightened procedures in Dixon and that
therefore, it was consistent with the district court’s authority to
permit exhibits into the jury room to allow the jury to rehear
the recording during deliberations. According to the State,
we need only review the district court’s ruling for an abuse
of discretion.
Decision in Dixon.
In view of the parties’ contentions, we begin by examining
our decision in Dixon to determine whether and to what extent
it may be in need of clarification. Later in this opinion, we
describe in greater detail our understanding of what constitutes
“testimony,” sometimes referred to as “testimonial evidence.”
As we explain later, testimony refers to trial evidence, includ-
ing live oral examinations, affidavits and depositions in lieu of
live testimony, and tapes of examinations conducted prior to
the time of trial for use at trial in accordance with procedures
provided by law. See, generally, Neb. Rev. Stat. §§ 25-1240and 25-1242 (Reissue 2008).
In Dixon, the defendant objected to the jury’s request dur-
ing deliberations for a tape player that would allow the jury
to listen to a recording of a telephone conversation between
the defendant and a codefendant. In the conversation, the
defendant was asked why he shot the victim and the defendant
replied that he “‘just felt like blasting on him.’” Id. at 980,
614 N.W.2d at 292. The trial court overruled the defendant’s
Nebraska Advance Sheets
STATE v. VANDEVER 811
Cite as 287 Neb. 807objection, and the jury was provided the recording and a tape
player for unsupervised use in the jury room. Although we
reversed the defendant’s convictions and resolved the appeal
on other grounds, we considered the defendant’s assignment
of error regarding the jury’s access to the recording during
deliberations in order “to address the procedure by which such
exhibits should be presented to the jury if properly admitted
into evidence.” Id. at 986, 614 N.W.2d at 296.
In Dixon, we stated that “[t]he general rule is that allow-
ing a jury to rehear only portions of the evidence after they
have commenced deliberations is not to be encouraged, but
it is a matter within the discretion of the trial court.” 259
Neb. at 986-87, 614 N.W.2d at 296 (citing State v. Halsey,
232 Neb. 658, 441 N.W.2d 877 (1989)). We then stated that
specifically, with regard to testimonial evidence, “[t]he tradi-
tional common-law rule is that a trial court has ‘no discretion
to submit depositions and other testimonial materials to the
jury room for unsupervised review, even if properly admitted
into evidence at trial.’” Id. at 987, 614 N.W.2d at 296 (quot-
ing Chambers v. State, 726 P.2d 1269 (Wyo. 1986)). That is,
such testimonial material should not be permitted in the jury
room. However, in Dixon, we created heightened procedures
by which testimonial evidence could be reheard by the jury
during deliberations and described these heightened proce-
dures as follows:
When a jury makes a request to rehear certain evidence,
the common-law rule requires that a trial court discover
the exact nature of the jury’s difficulty, isolate the pre-
cise testimony which can solve it, and weigh the proba-
tive value of the testimony against the danger of undue
emphasis. If, after this careful exercise of discretion,
the court decides to allow some repetition of the tape-
recorded evidence for the jury, it can do so in open court
in the presence of the parties or their counsel or under
other strictly controlled procedures of which the parties
have been notified.
259 Neb. at 987, 614 N.W.2d at 297. In Dixon, we stated
that these procedures were required by common law and
cited Chambers for this proposition. Vandever asserts that the
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recording at issue in the instant case is testimonial and that
the court was required but failed to follow these heightened
procedures before it allowed the jury to rehear the interview
recording of Vandever.
We make two initial observations about this portion of
the Dixon opinion that are relevant to our consideration of
whether Dixon remains sound and whether it applies to the
instant case. First, in the Wyoming case to which we refer
as the source for the heightened procedures, the Wyoming
Supreme Court described such procedures as being required
by statute rather than by common law. See Chambers, supra.
Second, although the heightened procedures were meant to
apply specifically to “depositions and other testimonial mate-
rials,” see id. at 1275, our discussion of the procedures in
Dixon infers that such procedures apply generally to any
recorded form of verbal evidence. Both observations require
further explanation.
In Dixon, we stated that the heightened procedures set
forth therein were required by “the common-law rule” and
we cited Chambers, supra, as the source for the proce-
dures. 259 Neb. at 987, 614 N.W.2d at 296. However, the
Wyoming Supreme Court in Chambers did not state that
the procedures were derived from common law. Instead, in
the context of determining whether it was appropriate for a
court to allow the jury to view videotaped testimony during
deliberations, the court in Chambers discussed a Wyoming
statute which “permits a court to refresh the jury’s recollec-
tion of trial testimony under certain limited circumstances.”
726 P.2d at 1275-76. The Wyoming court quoted the statute,
which provides:
After the jurors have retired for deliberation, if there
is a disagreement between them as to any part of the
testimony, or if they desire to be informed as to any
part of the law arising in the case, they may request the
officer to conduct them to the court where information
upon the matter of law shall be given. The court may
give its recollection as to the testimony on the points in
dispute, in the presence of or after notice to the parties
or their counsel.
Nebraska Advance Sheets
STATE v. VANDEVER 813
Cite as 287 Neb. 807Wyo. Stat. Ann. § 1-11-209 (2013). The Wyoming court in
Chambers identified the statute, rather than a common-law
rule, as the source requiring the heightened procedures to be
employed when a court responds to a jury’s request during
deliberations to rehear testimony that was presented in the
form of an audio or video recording.
[2] We note that Nebraska has a similar statute, Neb. Rev.
Stat. § 25-1116 (Reissue 2008), which provides as follows:
After the jury have retired for deliberation, if there be
a disagreement between them as to any part of the testi-
mony, or if they desire to be informed as to any part of
the law arising in the case, they may request the officer
to conduct them to the court where the information upon
the point of law shall be given, and the court may give
its recollection as to the testimony on the point in dis-
pute in the presence of or after notice to the parties or
their counsel.
To the extent the heightened procedures we set forth in Dixon
were based on the Wyoming court’s interpretation of its statute
relating to the court’s ability to refresh the jury’s memory with
regard to recorded testimony, then it was reasonable for this
court in Dixon to similarly interpret § 25-1116 as also requir-
ing such heightened procedures when a jury makes a request to
rehear testimony that was presented through an audio or video
recording. However, because our comments in Dixon relied
on Chambers v. State, 726 P.2d 1269 (Wyo. 1986), it was not
appropriate in Dixon to indicate that the heightened procedures
were required under common law and to cite to Chambers
as authority therefor. Instead, we should have stated that the
heightened procedures were implicitly required under statute
when the court considers a jury’s request under § 25-1116 to
rehear testimony that was presented in the form of an audio or
video recording.
We next note that although the Wyoming case, Chambers,
supra, was specifically concerned with whether the jury could
rehear recorded testimony, our discussion of the heightened
procedures in Dixon was more expansive and made it appear
that the procedures outlined in Dixon applied to any sort of
verbal recording entered into evidence, whether or not that
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evidence was testimonial. As discussed above, the heightened
procedures set forth in Dixon are a reasonable interpretation
of how § 25-1116 should be applied when the jury’s request
relates to recorded testimony. Because the statute is con-
cerned with testimony, the heightened procedures outlined
in Dixon should apply only when the recording at issue con-
tains testimonial evidence. The heightened procedures should
not apply to nontestimonial evidence merely because such
evidence is verbal in nature and is contained in an audio or
video recording.
In case law subsequent to Dixon, we have noted a distinc-
tion between testimonial evidence and other types of evi-
dence. For example, in State v. Pischel, 277 Neb. 412, 427,
762 N.W.2d 595, 607 (2009), we stated both that “a trial court
has no discretion to submit testimonial materials to the jury
for unsupervised review during deliberations” and that “trial
courts have broad discretion in allowing the jury to have
unlimited access to properly received exhibits that constitute
substantive evidence of the defendant’s guilt.” In Pischel, we
rejected the defendant’s argument that the heightened pro-
cedures in Dixon applied to the district court’s decision to
allow the jury access during deliberations to transcripts of the
defend­ nt’s online conversations with a minor girl in a pros-
a
ecution for use of a computer to entice a child or a peace offi-
cer believed to be a child for sexual purposes. We reasoned in
Pischel that “the transcripts of online conversations were not
testimonial material but instead were substantive evidence of
[the defendant’s] guilt.” 277 Neb. at 427-28, 762 N.W.2d at
607. We note in this regard that the Wyoming Supreme Court
has similarly made a distinction between testimonial record-
ings and recordings admitted as nontestimonial exhibits when
applying Chambers, supra. See Munoz v. State, 849 P.2d 1299(Wyo. 1993).
This distinction between testimonial materials and other
evidence was not made clear in Dixon, because we referred
simply to “recordings” rather than “recordings of testimony.”
The distinction was blurred further because the evidence at
issue in Dixon was not testimonial. Instead, the evidence was
a recording of the defendant’s conversation with a codefendant
Nebraska Advance Sheets
STATE v. VANDEVER 815
Cite as 287 Neb. 807which the defendant did not know was being recorded and did
not know would be used at a trial. Therefore, the heightened
procedures applicable to evidence embodied in a recording of
testimony outlined in Dixon were not applicable to the evi-
dence at issue in that case.
[3] As noted above, the defendant’s convictions in Dixon
were reversed based on issues unrelated to the recording
that was played for the jury. Therefore, the discussion of the
heightened procedures in Dixon did not determine the disposi-
tion of the case but instead was intended to provide guidance
to the trial court on remand. However, as we noted above, the
discussion of the heightened procedures in conjunction with
the discussion of specific evidence at issue in Dixon uninten-
tionally implied that the procedures were to be used in con-
nection with any evidence that is presented in the form of an
audio or video recording, whether testimonial or not. To the
extent Dixon indicated that the heightened procedures set forth
therein were to be used in connection with nontestimonial
recorded evidence, it is disapproved. The procedures set forth
in Dixon implementing § 25-1116 are applicable only when
a jury has requested to have its memory refreshed regarding
testimonial evidence.
Parties’ Contentions and
Our Resolution.
As we understand it, Vandever argues that the jury’s request
was implicitly subject to § 25-1116, the recording was testi-
monial evidence, and the court erred when it failed to strictly
adhere to the heightened procedures described in Dixon. The
State argues in response that the recording was substantive evi-
dence of the crime, nontestimonial in nature, and that the court
had discretion to allow the jury unlimited access to the record-
ing and to rehear it without being required to follow the height-
ened procedures set forth in Dixon. We determine that the evi-
dence at issue in this case was not testimony and that therefore,
the jury’s request was not made pursuant to § 25-1116 and the
heightened procedures were not required.
We note initially that the determination of whether evidence
is “testimony” for purposes of § 25-1116 is not the same
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as the determination of whether a statement is “testimonial”
for purposes of Confrontation Clause analysis. See State v.
Hembertt, 269 Neb. 840, 850, 696 N.W.2d 473, 481-82 (2005)
(stating that “whether particular evidence is ‘testimonial,’ for
Confrontation Clause purposes, may be quite different from
whether it is ‘testimonial’ as that word is used in other con-
texts” and citing Dixon as an example of such other contexts).
Therefore, our analysis of whether evidence is “testimony” for
purposes of § 25-1116 is not guided by, and should not serve
as guidance for, an analysis of whether a statement is “testimo-
nial” for Confrontation Clause purposes.
As discussed above, the heightened procedures set forth in
Dixon are required only when the jury has made a request with
regard to testimony pursuant to § 25-1116. Section 25-1116 is
found in the Nebraska statutes pertaining to civil procedure.
“Testimony” as used in § 25-1116 is not defined. We there-
fore must explain the meaning of “testimony” in § 25-1116
and determine whether the recording at issue in this case
was “testimony” within the meaning of § 25-1116. Although
we have not explicitly set forth a definition of “testimony”
for purposes of § 25-1116, we have applied the statute with
respect to the reading of a deposition during deliberations, see
Bakhit v. Thomsen, 193 Neb. 133, 225 N.W.2d 860 (1975), as
well as the reading of an official court reporter’s record of live
testimony, see Shiers v. Cowgill, 157 Neb. 265, 59 N.W.2d
407 (1953), and Graves v. Bednar, 171 Neb. 499, 107 N.W.2d
12 (1960).
[4] Elsewhere in the statutory chapter pertaining to civil
procedure, we note that § 25-1240 provides that the “testi-
mony of witnesses may be taken in four modes: (1) By affi-
davit; (2) by deposition; (3) by oral examination, and (4) by
videotape of an examination conducted prior to the time of
trial for use at trial in accordance with procedures provided by
law.” We read “testimony” under § 25-1240 as including oral
testimony as well as verbal evidence presented in other modes
as a substitute for oral testimony. We take guidance from
§ 25-1240, and we determine that “testimony” for purposes
of § 25-1116 encompasses evidence authorized as “testimony”
under § 25-1240, that is, as live testimony at trial by oral
Nebraska Advance Sheets
STATE v. VANDEVER 817
Cite as 287 Neb. 807examination or by some substitute for live testimony, includ-
ing but not limited to, affidavit, deposition, or video recording
of an examination conducted prior to the time of trial for use
at trial. For completeness, we note that videotaped depositions
are statutorily included in the definition of “deposition” in
§ 25-1242.
In the present case, the recording of the investigator’s inter-
view of Vandever, although verbal in nature, was not prepared
as or admitted into evidence as a substitute for live testimony
at trial. In the language of § 25-1240, it was not “an exami-
nation conducted prior to the time of trial for use at trial in
accord­nce with procedures provided by law.” Instead, we
a
determine that the interview was admitted as nontestimonial
evidence. Therefore, the jury’s request to rehear the 8-minute
investigator interview recording was not a request relating to
“testimony” made pursuant to § 25-1116, and the heightened
procedures set forth in Dixon were not required. As a conse-
quence, we need not comment on whether the procedure fol-
lowed by the district court was or was not adequate under the
heightened procedures. The court did not abuse its discretion
when it did not follow heightened procedures before allow-
ing the jury to rehear the recording, and we therefore find
Vandever’s assignment of error to be without merit.
CONCLUSION
We determine that the evidence at issue in this case was
not testimony and that therefore, the heightened procedures
for a jury request for “any part of the testimony” pursuant
to § 25-1116 were not required. We conclude that the district
court did not abuse its discretion when it allowed the jury to
rehear the 8-minute recording of the investigator’s interview of
Vandever. We therefore reject Vandever’s assignment of error,
and we affirm his conviction and sentence.
Affirmed.
Wright, J., participating on briefs.