State v. Patton ( 2014 )


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  •                         Nebraska Advance Sheets
    STATE v. PATTON	899
    Cite as 
    287 Neb. 899
    permitted to clarify Susan’s wishes,6 which he did by asking
    whether she had questions for him. And when he so inquired,
    Susan indicated that she did, asking about the autopsy. Susan
    then willingly answered questions posed by Farber in connec-
    tion with the coroner’s report for the autopsy.
    For the above reasons, I would conclude that Susan’s state-
    ments from 3:43 to 4 a.m. did not need to be suppressed,
    because Susan did not unambiguously invoke her right to
    remain silent.
    6
    See Berghuis v. Thompkins, 
    560 U.S. 370
    , 
    130 S. Ct. 2250
    , 
    176 L. Ed. 2d 1098
     (2010).
    State of Nebraska, appellee, v.
    Marqus J. Patton, appellant.
    ___ N.W.2d ___
    Filed April 11, 2014.   No. S-13-105.
    1.	 Constitutional Law: Witnesses: Appeal and Error. An appellate court
    reviews de novo a trial court’s determination of the protections afforded by the
    Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article
    I, § 11, of the Nebraska Constitution and reviews the underlying factual determi-
    nations for clear error.
    2.	 Constitutional Law: Due Process. The determination of whether procedures
    afforded an individual comport with constitutional requirements for procedural
    due process presents a question of law.
    3.	 Judgments: Appeal and Error. When issues on appeal present questions of law,
    an appellate court has an obligation to reach an independent conclusion irrespec-
    tive of the decision of the court below.
    4.	 Rules of Evidence: Appeal and Error. The exercise of judicial discretion is
    implicit in the determinations of relevancy under Neb. Evid. R. 403, 
    Neb. Rev. Stat. § 27-403
     (Reissue 2008), and a trial court’s decisions regarding them will
    not be reversed absent an abuse of discretion.
    5.	 Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
    of the trial court to determine relevancy and admissibility of evidence of other
    wrongs or acts under Neb. Evid. R. 404(2), 
    Neb. Rev. Stat. § 27-404
    (2) (Cum.
    Supp. 2012), and the trial court’s decision will not be reversed absent an abuse
    of discretion.
    6.	 Criminal Law: Constitutional Law: Trial: Witnesses. The right of a person
    accused of a crime to confront the witnesses against him or her is a fundamental
    Nebraska Advance Sheets
    900	287 NEBRASKA REPORTS
    right guaranteed by the 6th amendment to the U.S. Constitution, as incorpo-
    rated in the 14th amendment, as well as by article 1, § 11, of the Nebraska
    Constitution.
    7.	   Constitutional Law: Trial: Witnesses. The functional purpose of the
    Confrontation Clause is to ensure the integrity of the factfinding process through
    the provision of an opportunity for effective cross-examination.
    8.	   Constitutional Law: Trial: Witnesses: Words and Phrases. The right to
    confrontation means more than merely being allowed to confront the witness
    physically. But the right is not unlimited, and only guarantees an opportunity for
    effective cross-examination, not cross-examination that is effective in whatever
    way and to whatever extent the defense may wish.
    9.	   Trial: Testimony. When the object of the cross-examination is to collaterally
    ascertain the accuracy or credibility of the witness, the scope of the inquiry is
    ordinarily subject to the discretion of the trial court.
    10.	   Constitutional Law: Trial: Juries: Witnesses. An accused’s constitutional
    right of confrontation is violated when either (1) he or she is absolutely pro-
    hibited from engaging in otherwise appropriate cross-examination designed to
    show a prototypical form of bias on the part of the witness, or (2) a reasonable
    jury would have received a significantly different impression of the witnesses’
    credibility had counsel been permitted to pursue his or her proposed line of
    cross-examination.
    11.	   Criminal Law: Due Process: Witnesses. The existence of an agreement to tes-
    tify by a witness under threats or promises of leniency made by the prosecutor is
    relevant to the credibility of such witness, and failure to bring that to the attention
    of the jury denies the defendant due process of law.
    12.	   Criminal Law: Witnesses. An expectation of leniency on the part of a witness,
    absent evidence of any expressed or implied agreement, need not be revealed to
    the jury.
    13.	   Records: Appeal and Error. A party’s brief may not expand the eviden-
    tiary record.
    14.	   Evidence: Records: Appeal and Error. A bill of exceptions is the only vehicle
    for bringing evidence before an appellate court; evidence which is not made a
    part of the bill of exceptions may not be considered.
    Appeal from the District Court for Douglas County: J.
    Michael Coffey, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, for
    appellant.
    Jon Bruning, Attorney General, and Nathan A. Liss for
    appellee.
    Heavican, C.J., Wright, Connolly, Stephan, McCormack,
    Miller-Lerman, and Cassel, JJ.
    Nebraska Advance Sheets
    STATE v. PATTON	901
    Cite as 
    287 Neb. 899
    Stephan, J.
    A jury convicted Marqus J. Patton of first degree murder
    and use of a deadly weapon to commit a felony as a result of
    his involvement in a fatal shooting which occurred during a
    home invasion robbery. Two key prosecution witnesses were
    participants in the crime, and another was the victim’s former
    girlfriend. On appeal, Patton contends the trial court errone-
    ously restricted his cross-examination of these witnesses and
    otherwise impeded his efforts to impeach them in violation of
    his constitutional rights of confrontation and due process of
    law. We conclude there was no reversible error and affirm.
    I. BACKGROUND
    On July 6, 2011, Patton was at the home of his friend
    Nicholas Ely. Also present were Ryan Elseman and Emily
    G., a juvenile. The group decided to go swimming, and
    Drake Northrop arrived at around 11:45 a.m. to give them a
    ride. After setting out in Northrop’s vehicle, they decided to
    stop to buy marijuana from Kristopher Winters before going
    swimming.
    Emily directed the group to Winters’ home, where she had
    been before. She testified that while they were in the car, she
    heard the others discussing a plan to rob Winters. Northrop tes-
    tified that it was Ely and Elseman who devised the plan to rob
    Winters and recalled them saying it would be an easy “lick,” a
    slang term for robbery. Northrop further testified that both he
    and Patton agreed with the plan.
    Northrop parked the car around the corner from Winters’
    home. Emily went to the door alone and agreed to send a
    text message to the others when she was inside. While near
    Winters’ home, Emily encountered Winters’ friend Eric Brusha.
    Brusha called Winters on his cell phone, and Winters let Emily
    and Brusha in the house. Emily then sent a text message to
    Elseman stating that she was inside.
    A few minutes later, Ely, Elseman, Patton, and Northrop
    entered Winters’ home. Elseman and Patton both carried fire-
    arms. When Elseman held his weapon up, Winters rushed at
    Elseman. Patton struck Winters as he fought with Elseman,
    and then Winters struck Patton with a chair. Patton yelled for
    Nebraska Advance Sheets
    902	287 NEBRASKA REPORTS
    Elseman to shoot, and a gunshot struck Winters in the neck,
    causing his death. As Winters fell, Ely, Elseman, Patton, and
    Northrop ran to the parked vehicle. Emily was left behind.
    Ely, Elseman, Patton, and Northrop left the scene in
    Northrop’s vehicle. Elseman sent Emily a text message instruct-
    ing her to go to a nearby restaurant where someone would pick
    her up. The others went to Patton’s apartment. On the way
    there, Patton stated that a bullet must have grazed him and
    showed the others a bloody injury on his stomach. DNA test-
    ing later showed blood found in Northrop’s car was a match
    for Patton.
    Meanwhile, Brusha called the 911 emergency dispatch serv­
    ice and was present at the scene when investigators arrived.
    An investigating officer escorted Brusha to the police station
    for an interview. As they drove, Brusha saw Emily walking
    and identified her as a participant in the incident. Emily was
    detained and taken to the police station.
    Emily had blood spatters on her shirt, leg, and shoes. She
    initially was uncooperative, but eventually told investigators
    what happened and showed them where Ely lived. Patton
    was arrested on the morning of July 8, 2011. Northrop was
    arrested on July 14. Northrop originally denied involvement,
    but eventually confessed and implicated Ely, Elseman, Patton,
    and Emily.
    Patton, Emily, and Northrop were all charged with first
    degree murder. Emily and Northrop agreed to testify against
    Patton, and many of the facts summarized here came into
    evidence through their testimony. In addition, Cassandra
    Moyers, Winters’ former girlfriend, testified that 2 days
    before the robbery, she had been at a party with Ely, Elseman,
    Patton, and Northrop. At that time, Patton asked Moyers to
    help him devise a plan to rob Winters, who was a known
    drug dealer.
    Patton was convicted and sentenced to life imprisonment on
    the murder count and to 5 to 15 years’ imprisonment for use
    of a deadly weapon to commit a felony. He filed this timely
    appeal. Additional facts will be set forth in our discussion of
    Patton’s specific assignments of error.
    Nebraska Advance Sheets
    STATE v. PATTON	903
    Cite as 
    287 Neb. 899
    II. ASSIGNMENTS OF ERROR
    Patton assigns, restated, renumbered, and consolidated, (1)
    that the trial court violated his constitutional right to confront
    the witnesses against him by limiting his cross-examination
    of Emily, Northrop, and Moyers; (2) that the trial court vio-
    lated his due process rights by precluding him from present-
    ing evidence that the State had made tacit plea agreements
    with Emily and Northrop; (3) that the State violated his due
    process rights by failing to disclose it made such tacit plea
    agreements; and (4) that the trial court erred in refusing to
    receive evidence of prior robberies committed by Emily
    and Elseman.
    III. STANDARD OF REVIEW
    [1-3] An appellate court reviews de novo a trial court’s
    determination of the protections afforded by the Confrontation
    Clause of the Sixth Amendment to the U.S. Constitution and
    article I, § 11, of the Nebraska Constitution and reviews the
    underlying factual determinations for clear error.1 The determi-
    nation of whether procedures afforded an individual comport
    with constitutional requirements for procedural due process
    presents a question of law.2 When issues on appeal present
    questions of law, an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision of the
    court below.3
    [4,5] The exercise of judicial discretion is implicit in the
    determinations of relevancy under Neb. Evid. R. 403, 
    Neb. Rev. Stat. § 27-403
     (Reissue 2008), and a trial court’s decisions
    regarding them will not be reversed absent an abuse of discre-
    tion.4 It is within the discretion of the trial court to determine
    relevancy and admissibility of evidence of other wrongs or acts
    under Neb. Evid. R. 404(2), 
    Neb. Rev. Stat. § 27-404
    (2) (Cum.
    1
    State v. Kitt, 
    284 Neb. 611
    , 
    823 N.W.2d 175
     (2012). See, also, State v.
    Sorensen, 
    283 Neb. 932
    , 
    814 N.W.2d 371
     (2012).
    2
    State v. Watson, 
    285 Neb. 497
    , 
    827 N.W.2d 507
     (2013).
    3
    State v. Landera, 
    285 Neb. 243
    , 
    826 N.W.2d 570
     (2013).
    4
    State v. Taylor, 
    282 Neb. 297
    , 
    803 N.W.2d 746
     (2011).
    Nebraska Advance Sheets
    904	287 NEBRASKA REPORTS
    Supp. 2012), and the trial court’s decision will not be reversed
    absent an abuse of discretion.5
    IV. ANALYSIS
    1. Limitation of
    Cross-Examination
    Patton contends the trial court violated his Sixth Amendment
    right to confrontation when it limited his ability to cross-
    examine three prosecution witnesses. Specifically, he argues
    that the district court erred in restricting him from (1) cross-
    examining Emily and Northrop about what sentence they
    hoped to avoid by testifying against him and (2) question-
    ing Moyers about the fact that she believed Winters’ family
    blamed her for his death.
    [6-10] The right of a person accused of a crime to con-
    front the witnesses against him or her is a fundamental right
    guaranteed by the 6th amendment to the U.S. Constitution, as
    incorporated in the 14th amendment, as well as by article 1,
    § 11, of the Nebraska Constitution.6 The functional purpose
    of the Confrontation Clause is to ensure the integrity of the
    factfinding process through the provision of an opportunity
    for effective cross-examination.7 The right to confrontation
    means more than merely being allowed to confront the wit-
    ness physically.8 But the right is not unlimited, and only
    guarantees an opportunity for effective cross-examination,
    not cross-examination that is effective in whatever way and
    to whatever extent the defense may wish.9 When the object
    of the cross-examination is to collaterally ascertain the accu-
    racy or credibility of the witness, the scope of the inquiry
    5
    State v. Collins, 
    281 Neb. 927
    , 
    799 N.W.2d 693
     (2011).
    6
    State v. Stark, 
    272 Neb. 89
    , 
    718 N.W.2d 509
     (2006); State v. Johnson, 
    255 Neb. 865
    , 
    587 N.W.2d 546
     (1998).
    7
    State v. Stark, 
    supra note 6
    ; 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
     (2006).
    8
    State v. Privat, 
    251 Neb. 233
    , 
    556 N.W.2d 29
     (1996).
    9
    
    Id.,
     citing Delaware v. Van Arsdall, 
    475 U.S. 673
    , 
    106 S. Ct. 1431
    , 
    89 L. Ed. 2d 674
     (1986).
    Nebraska Advance Sheets
    STATE v. PATTON	905
    Cite as 
    287 Neb. 899
    is ordinarily subject to the discretion of the trial court.10 An
    accused’s constitutional right of confrontation is violated
    when either (1) he or she is absolutely prohibited from engag-
    ing in otherwise appropriate cross-examination designed to
    show a prototypical form of bias on the part of the witness,
    or (2) a reasonable jury would have received a significantly
    different impression of the witnesses’ credibility had coun-
    sel been permitted to pursue his or her proposed line of
    cross-examination.11
    (a) Cross-Examination of
    Emily and Northrop
    Because there was limited physical evidence linking Patton
    to the murder, the testimony of both Emily and Northrop was
    an important part of the State’s case against him. Prior to trial,
    the State filed a motion in limine to prevent Patton from asking
    either Emily or Northrop what penalty he or she was seeking
    to avoid by testifying against him. The trial court sustained the
    motion, reasoning that because Patton, Emily, and Northrop
    were all charged with first degree murder, allowing either
    Emily or Northrop to testify about the possible penalty for that
    crime would improperly alert the jury to the penalty Patton
    faced if convicted.
    Patton was, however, permitted to cross-examine both Emily
    and Northrop generally, and rather extensively, about their
    decisions to testify against him. And both were also asked on
    direct examination about their decision to testify. Specifically,
    Emily, who was 15 years of age at the time of the murder,
    testified on direct examination that she was charged with first
    degree murder and that she had a “hope or an expectation” that
    by testifying, she would “get [her case] dropped down to juve-
    nile.” She explained, however, that she had not been “told that
    that is going to happen for sure.”
    On cross-examination, Emily admitted that she was “trying
    to save” herself and that to do that, she had to cooperate with
    10
    State v. Privat, 
    supra note 8
    . See, also, State v. Banks, 
    278 Neb. 342
    , 
    771 N.W.2d 75
     (2009); State v. Stark, 
    supra note 6
    .
    11
    
    Id.
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    906	287 NEBRASKA REPORTS
    the prosecution. She also admitted that she had told lies to
    protect herself when she was “in a corner.” She again testified
    that she was charged with first degree murder and explained
    that she understood that because of the felony murder rule,
    whoever participates in a murder is charged with the murder.
    She also testified on cross-examination that it was her under-
    standing that if her case were transferred to juvenile court, she
    would not go to prison and she would actually be “free and
    clear” on her 19th birthday. She testified that her desire to get
    her case transferred to juvenile court had been communicated
    to the prosecutor only via her testifying against Patton and the
    other defendants in the case. She admitted that “what happens”
    to her is the “most important thing that’s going on” in her mind
    and that “[w]hat happens” to her “depends in large part [on]
    how” she testified.
    Northrop testified on direct that he was currently incarcer-
    ated and was facing a first degree murder charge related to
    Winters’ death. He stated he was testifying at Patton’s trial and
    had testified before “[i]n hopes to get a deal.” On direct exami-
    nation, he stated he had been promised “[n]othing” in return
    for his testimony.
    On cross-examination, Northrop testified that when he gave
    his initial statement to police, he wanted to minimize his own
    involvement and maximize everyone else’s to “help [him]self
    out.” He stated that he had told lies under oath and was try-
    ing to “save” himself by testifying. He stated he was “hoping”
    that he would get a benefit from the prosecution, because he
    had testified against Patton and other persons charged with
    Winters’ murder.
    Clearly, Patton was not absolutely prohibited from cross-
    examining Emily and Northrop with respect to a prototypical
    form of bias, namely, whether their testimony against Patton
    was influenced by their desire to receive favorable treatment
    from prosecutors in their pending murder cases. Thus, the ques-
    tion before us is whether a reasonable jury would have received
    a significantly different impression of the witnesses’ credibility
    had counsel been permitted to carry the cross-examination one
    Nebraska Advance Sheets
    STATE v. PATTON	907
    Cite as 
    287 Neb. 899
    step further by inquiring as to the specific penalty they faced if
    convicted of first degree murder.12
    We applied this test to a limitation on the cross-­ xamination
    e
    of a prosecution witness who had participated in the crime
    charged in State v. Stark.13 The witness, Scott McNeill, testi-
    fied that it was the defendant, Dennis Stark, who struck the
    fatal blow to the victim’s head with a hammer. Stark testified
    that it was McNeill who struck the blow. Stark was not per-
    mitted to cross-examine McNeill regarding his fear of receiv-
    ing the death penalty and, on appeal, contended that his right
    to confrontation was thus violated. We found that Stark was
    permitted to question McNeill about the reduction of charges
    against him to second degree murder and his concern about
    getting the death penalty without objection. We determined
    that this cross-examination “was sufficient to support an
    argument that McNeill had a motive to confess and testify
    against Stark”14 and that thus, it could not be said that the
    jury would have received a significantly different impression
    of McNeill’s credibility had Stark been permitted to cross-
    examine him more extensively about his fear of receiving the
    death penalty.
    Stark is somewhat distinguishable from the instant case in
    that neither Emily nor Northrop mentioned the specific penalty
    for first degree murder at any point in their testimony. Patton
    urges that we follow the reasoning of the Arizona Supreme
    Court in State v. Morales.15 In that first degree murder case,
    the key prosecution witness was a 15-year-old who had been a
    principal participant in the crime and was testifying at the trial
    pursuant to a plea agreement. The jury was told that pursuant
    to the agreement, if the State found the testimony of “‘substan-
    tial aid’” in its prosecution, it would withdraw its request to
    12
    See State v. Privat, 
    supra note 8
    . See, also, State v. Banks, 
    supra note 10
    ;
    State v. Stark, 
    supra note 6
    .
    13
    State v. Stark, 
    supra note 6
    .
    14
    
    Id. at 100
    , 
    718 N.W.2d at 520
    .
    15
    State v. Morales, 
    120 Ariz. 517
    , 
    587 P.2d 236
     (1978).
    Nebraska Advance Sheets
    908	287 NEBRASKA REPORTS
    transfer the witness’ then pending juvenile case to adult court
    and the witness would enter an admission to the charge of
    second degree murder in juvenile court.16 The jury was further
    told that if this occurred, the witness would be subject to the
    jurisdiction of the juvenile court only until he turned 21 years
    of age. Defense counsel sought to introduce evidence that if
    the witness’ case had been transferred to adult court, he would
    have faced the possibility of death or life in prison, but the
    trial court prevented counsel from doing so, reasoning such
    evidence would alert the jury to the possible penalty faced by
    the defendant before it. In reversing the conviction, the Arizona
    Supreme Court held:
    Whatever merit [the trial court’s] reason may have, it can-
    not outweigh the right of the defendant to cross-examine
    the State’s major witness on what he expects in return for
    his testimony. The fact that the witness faced a possible
    death penalty if he did not testify for the State surely
    would be a factor if not the factor in the witness’s deci-
    sion to testify. The trial court’s refusal to allow inquiry
    into the penalty the witness would have faced had he not
    agreed to testify was reversible error.17
    There is authority in Nebraska for the general proposition
    that jurors need not and should not be told of the punishment
    faced by a defendant if convicted.18 We agree with the Arizona
    Supreme Court that this principle should yield to the right of
    a defendant to cross-examine a prosecution witness regarding
    the penalty that he or she is avoiding or seeking to avoid by
    testifying, even if such cross-examination necessarily discloses
    the penalty faced by the defendant if convicted.
    But this case differs from Morales in three key respects.
    First, Emily and Northrop did not face the death penalty.
    Second, the jury learned of the potential life sentences Emily
    and Northrop were facing from another witness. Third, both
    16
    
    Id. at 519
    , 
    587 P.2d at 238
    .
    17
    
    Id. at 520
    , 
    587 P.2d at 239
    .
    18
    See, State v. Nelson, 
    182 Neb. 31
    , 
    152 N.W.2d 10
     (1967); State v.
    McDaniel, 
    12 Neb. App. 76
    , 
    667 N.W.2d 259
     (2003). See, also, NJI2d
    Crim. 9.5.
    Nebraska Advance Sheets
    STATE v. PATTON	909
    Cite as 
    287 Neb. 899
    Emily and Northrop were extensively cross-examined about
    the benefit they hoped to obtain by testifying.
    After both Emily and Northrop had testified, Omaha Police
    Det. Dan Martin appeared as a prosecution witness. Martin
    was cross-examined regarding his initial interview with Emily
    following her arrest. He stated that Emily originally told
    him that she had gone to Winters’ home to purchase mari-
    juana, heard an altercation, and then left. Martin testified
    that Emily changed her story and described the robbery
    attempt after he told her that the others were saying she had
    planned the robbery. This cross-examination included the fol-
    lowing exchange:
    [Defense counsel:] And did you tell [Emily] what the
    consequences would be if she was — you know, if she
    was responsible for everything?
    [Martin:] Yes.
    Q. What did you tell her?
    A. So that she could be arrested just like everyone else.
    Life in prison.
    Q. Life in prison. So once you told her that she was
    facing that penalty, what did she do?
    A. She told me another version of her story.
    Shortly after this, a sidebar conference was held during which
    the prosecutor argued that “there should be no more mention”
    of the penalty, and the court replied, “It came out. Now leave
    it alone.” There was no motion to strike the testimony, and
    the jury was not instructed to disregard it. However, at the
    State’s request, the court directed defense counsel not to refer
    to Martin’s testimony regarding the penalty in his closing argu-
    ment. Nevertheless, Martin’s testimony informed the jury that
    the penalty for first degree murder faced by Emily (and by
    necessary implication, Northrop), was life imprisonment; that
    Emily was aware of this fact long before she testified at trial;
    and that she changed her story and incriminated Patton and
    others after learning of the penalty she faced.
    In view of Martin’s testimony, and considering the cross-
    examinations of Emily and Northrop in their entirety, we
    cannot conclude that a jury would have received a signifi-
    cantly different impression of their credibility if counsel had
    Nebraska Advance Sheets
    910	287 NEBRASKA REPORTS
    been permitted to elicit the fact that they faced life sentences
    for first degree murder. It was abundantly clear from their
    testimony that they were cooperating with the prosecution
    in an attempt to obtain favorable treatment on their pending
    charges, and for no other reason. Both admitted that they
    were attempting to “save” themselves. Emily admitted that if
    she did not have any hope of leniency, she would probably
    not testify. When Northrop was asked if he found himself
    in the position of “hav[ing] to testify for the prosecutors” in
    order to achieve his goal of saving himself, he responded,
    “Hopefully, yes.”
    Although Patton was not permitted to cross-examine Emily
    and Northrop regarding the specific sentences they hoped to
    avoid by testifying for the State, he was permitted to exam-
    ine them regarding the specific benefit they hoped to obtain.
    Emily understood that if her case were transferred to juvenile
    court, she would not go to prison and would be “free and
    clear” on her 19th birthday, when the juvenile court would
    no longer have jurisdiction. She agreed that this would be
    a “pretty good deal” and was hoping that it would happen.
    Northrop, who had two prior felony convictions, testified that
    he understood the difference in penalties for the four classes
    of Nebraska felonies and was hoping that prosecutors would
    allow him to plead guilty to an accessory offense, for which
    he could receive as little as 1 or 2 years in prison. Even with-
    out knowing the specific penalty for first degree murder, a
    reasonable juror would understand from this testimony that
    Emily and Northrop were hoping to obtain a substantial ben-
    efit from their cooperation with the prosecution. And the jury
    was instructed that it was the sole judge of the credibility of
    the witnesses and could consider, among other things, “[t]heir
    interest in the result of the suit, if any,” and “[t]heir apparent
    fairness or bias . . . .”
    Because the jury learned of the penalty for first degree
    murder from another witness and because Emily and Northrop
    were cross-examined extensively on their motivation to obtain
    leniency from the prosecution by testifying, a reasonable jury
    would not have received a significantly different impression of
    Nebraska Advance Sheets
    STATE v. PATTON	911
    Cite as 
    287 Neb. 899
    the witnesses’ credibility had defense counsel been permitted
    to ask what specific penalty Emily and Northrop faced. There
    was no violation of Patton’s confrontation right.
    (b) Cross-Examination
    of Moyers
    Moyers was Winters’ former girlfriend. She testified on
    direct examination that 2 days before the robbery, Patton
    asked her for information about where Winters kept his drugs
    because Patton wanted to rob Winters. She also testified that
    after her relationship with Winters ended in December 2010,
    she remained friendly with his mother, explaining they were
    together frequently and were “[a]lmost best friends.” Moyers
    testified that she went to Winters’ home after she learned of the
    shooting “[b]ecause I was really close to the family.”
    On cross-examination, Moyers was asked about her rela-
    tionship with Winters’ family while she was dating him and
    the frequency of her visits to the Winters’ home. When asked
    about her relationship with Winters’ mother, she said it was
    “good at the time.” Patton’s counsel then asked, “How is it
    now?” The court sustained the State’s relevancy objection to
    this question.
    At that point, there was a sidebar conference at which
    Patton’s counsel argued he should be able to pursue his inquiry
    because according to the deposition testimony of an unidenti-
    fied witness, the Winters’ family blamed Moyers for Winters’
    death, and this gave Moyers a motive to falsify or exagger-
    ate her testimony against Patton. The prosecutor argued that
    Moyers’ current relationship with Winters’ family was irrel-
    evant. The court again sustained the objection. There was no
    offer of proof.
    Because Patton was not completely prevented from cross-
    examining Moyers regarding a possible bias stemming from
    her relationship with Winters’ family, the restriction on cross-
    examination must be assessed under the second prong of the
    test in State v. Privat.19 Patton argues that Moyers believed
    19
    See State v. Privat, 
    supra note 8
    .
    Nebraska Advance Sheets
    912	287 NEBRASKA REPORTS
    that Winters’ family blamed her for his death and that “this
    belief, whether accurate or not, is a motive for the witness
    to exaggerate her knowledge of the situation in an effort to
    assuage the feelings of the Winters family.”20 This inference
    is somewhat tenuous, and the record does not include any
    evidentiary showing that Moyers held this belief. A stronger
    ­
    inference of Moyers’ potential bias against Patton can be
    drawn from her testimony that she had a close relationship
    with Winters’ family both during the time that she dated
    Winters and after they broke up. This evidence gave Patton
    a basis for arguing that Moyers had a personal bias in favor
    of Winters’ family and thus a motive to assist the prosecu-
    tion. We cannot conclude that a reasonable jury would have
    had a significantly different impression of her credibility had
    it known that Moyers believed that Winters’ family blamed
    her for his death, and thus, there was no violation of Patton’s
    confrontation rights.
    2. Tacit P lea Agreements
    Patton contends that the State made tacit plea agreements
    with Emily and Northrop whereby they would receive a reduc-
    tion in charges and, in Emily’s case, a transfer to juvenile
    court in exchange for their testimony. He contends that his due
    process rights were violated by the trial court’s ruling that he
    could not present evidence from the attorneys for Emily and
    Northrop with respect to such agreements or an understanding
    not to reach plea agreements prior to trial. And he contends
    that the State’s failure to disclose the purported agreements
    violated his due process rights as articulated in Brady v.
    Maryland21 and United States v. Bagley.22
    [11,12] The existence of an agreement to testify by a wit-
    ness under threats or promises of leniency made by the pros-
    ecutor is relevant to the credibility of such witness, and failure
    to bring that to the attention of the jury denies the defendant
    20
    Brief for appellant at 48.
    21
    Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
     (1963).
    22
    United States v. Bagley, 
    473 U.S. 667
    , 
    105 S. Ct. 3375
    , 
    87 L. Ed. 2d 481
    (1985).
    Nebraska Advance Sheets
    STATE v. PATTON	913
    Cite as 
    287 Neb. 899
    due process of law.23 An expectation of leniency on the part of
    a witness, absent evidence of any expressed or implied agree-
    ment, need not be revealed to the jury.24
    (a) Attorney Testimony
    As noted, both Emily and Northrop testified that they hoped
    for favorable consideration from the State in exchange for their
    testimony. Both also testified they had not been promised or
    assured that they would receive it. In other words, both denied
    that they had entered into any plea agreement with the State.
    Patton contends that the State entered into tacit plea agree-
    ments with both witnesses, which his counsel characterized as
    a “wink and [a] nod at each other and say, we’ll take care of
    you; we just don’t want to promise you anything.”
    To prove this claim, Patton sought to offer testimony from
    the attorneys who were representing Emily and Northrop in
    their pending first degree murder cases. In an offer of proof,
    Emily’s attorney acknowledged that he had made repeated
    efforts to persuade prosecutors to transfer Emily’s case to juve-
    nile court and had filed a motion requesting the transfer, which
    was pending. But he stated: “There’s never been an express
    agreement that — or anything in writing or any deal that would
    lead to [Emily’s] going to juvenile court.” He acknowledged
    that “everything she does towards cooperation, at this point,
    can only help her” and that it was his “expectation that she
    will end up in juvenile court based on conversations I’ve had.”
    He acknowledged that in some cases, he has reached a “tacit
    agreement” with prosecutors with respect to a cooperating
    codefendant. But when asked if he had a tacit agreement with
    respect to Emily, he replied:
    Well, this is a little different because, again, usually I
    would know — I would be able to tell exactly what —
    when I take something to my client, I can tell them, this
    is how this is going to happen, this is when it’s going to
    happen. Again, there have been no promises or actual
    23
    State v. Robinson, 
    271 Neb. 698
    , 
    715 N.W.2d 531
     (2006); State v. Rice,
    
    214 Neb. 518
    , 
    335 N.W.2d 269
     (1983).
    24
    
    Id.
    Nebraska Advance Sheets
    914	287 NEBRASKA REPORTS
    agreements made in this case for how that’s going to
    be done.
    Emily’s attorney testified that he was confident that her case
    would be moved to juvenile court because of her cooperation,
    age, and lack of a prior record, but stated, “I have not been
    told by the prosecutor’s office she will be moved up to juve-
    nile court.”
    In a narrative offer of proof, Patton’s counsel stated that
    if called as a witness, Northrop’s counsel would testify that
    he had conversations with a prosecutor but had received “no
    specific agreement in writing or one that would be put on the
    record, only that it would be considered . . . they would con-
    sider lesser offenses, depending on how things came out.”
    The district court sustained relevancy objections to both
    offers of proof. We find no error in this ruling. The attorneys’
    testimony would not have impeached the testimony of Emily
    and Northrop, because it was consistent with both witnesses’
    testimony that they hoped for leniency in exchange for their
    testimony, but had received no promises or assurances from
    the State. Because the attorneys’ testimony fell short of estab-
    lishing implied or “tacit” plea agreements benefiting Emily
    and Northrop, it was irrelevant.
    Nor are we persuaded by Patton’s argument that the State
    “opened the door” to the admissibility of the attorneys’ testi-
    mony by eliciting from Emily and Northrop on direct exami-
    nation that they had received no promises of leniency in
    exchange for their testimony.25 The manner in which this
    issue was initially raised at trial does not change the fact that
    the proffered testimony of the attorneys does not contradict
    or impeach the testimony of their clients that they had not
    received any promise of leniency from the State in exchange
    for their testimony.
    (b) Brady/Bagley Failure
    to Disclose
    In Brady v. Maryland, the U.S. Supreme Court held that
    the prosecution has a duty to disclose all favorable evidence
    25
    See brief for appellant at 44.
    Nebraska Advance Sheets
    STATE v. PATTON	915
    Cite as 
    287 Neb. 899
    to a criminal defendant prior to trial.26 The Court clarified in
    United States v. Bagley that impeachment evidence, as well
    as exculpatory evidence, falls within the Brady rule.27 Patton
    contends that the State failed to disclose tacit agreements with
    Emily and Northrop which he could have utilized to impeach
    their credibility.
    But as we have noted, the evidence in this record does not
    establish the existence of tacit plea agreements between the
    State and the two witnesses for the prosecution. Both testi-
    fied that they hoped to obtain leniency in exchange for their
    testimony but had not received any assurances or promises
    from the State. In State v. Rice,28 a prosecution witness charged
    with the same murder as the defendant testified that he chose
    to testify because he felt things would go easier for him if he
    did, but repeatedly denied that any deal had been struck with
    the prosecution. We held that while this testimony established
    that the witness had an expectation of leniency in exchange for
    his testimony, it fell short of establishing an express or implied
    promise by the State. We reach the same conclusion here.
    [13,14] For completeness, we note that Patton relies in part
    on documents attached as an “Appendix” to his brief in support
    of his argument that tacit plea agreements existed. These docu-
    ments are not included in the bill of exceptions. A party’s brief
    may not expand the evidentiary record.29 A bill of exceptions
    is the only vehicle for bringing evidence before an appellate
    court; evidence which is not made a part of the bill of excep-
    tions may not be considered.30 Accordingly, we do not consider
    these documents in our disposition of this issue.
    3. Emily’s Involvement
    in P rior Robberies
    Patton argues that the district court erred in sustaining the
    State’s objection to the admission of evidence that Emily and
    26
    Brady v. Maryland, 
    supra note 21
    .
    27
    United States v. Bagley, 
    supra note 22
    .
    28
    State v. Rice, 
    supra note 23
    .
    29
    State v. Rust, 
    247 Neb. 503
    , 
    528 N.W.2d 320
     (1995).
    30
    State v. Williams, 
    253 Neb. 111
    , 
    568 N.W.2d 246
     (1997).
    Nebraska Advance Sheets
    916	287 NEBRASKA REPORTS
    Elseman had committed other home invasion robberies of drug
    dealers in the months prior to the robbery and shooting of
    Winters and that Patton was not involved in those robberies.
    Prior to trial, the court sustained the State’s motion in limine
    with respect to this evidence. In support of an offer of proof at
    trial, Patton offered sworn testimony of Emily admitting that
    she had participated in prior robberies with Elseman in which
    Patton was not involved. Patton’s counsel stated that the evi-
    dence was not offered to show propensity, but, rather, to show
    that Emily and Elseman had been involved in prior similar
    crimes in which Patton was not a participant, which was con-
    sistent with Patton’s defense that he was not a participant in
    the Winters robbery attempt.
    We agree with the district court’s determination, implicit
    in sustaining the State’s objection, that the evidence was not
    relevant for any legitimate purpose, including impeachment. In
    addressing this identical issue in State v. Ely,31 which involved
    another defendant convicted of Winters’ murder, we stated:
    [T]he fact that Emily and Elseman may have committed
    prior robberies without the knowledge or participation
    of Ely is irrelevant to any issue in this case. . . . The
    fact that Ely was not involved in prior unlawful con-
    duct has no bearing, one way or another, on the issue of
    whether he committed the crimes he was charged with in
    this case.
    For the same reason, the evidence of prior home invasion rob-
    beries committed by Emily and Elseman without the participa-
    tion of Patton was inadmissible in this case.
    V. CONCLUSION
    For the reasons discussed, we find no reversible error and
    therefore affirm.
    Affirmed.
    31
    State v. Ely, 
    287 Neb. 147
    , 155, 
    841 N.W.2d 216
    , 223-24 (2014).