State v. Henderson ( 2014 )

Nebraska Advance Sheets
STATE v. HENDERSON 271
Cite as 289 Neb. 271of a district court that is reasonably supported by the record.15
We cannot conclude from the record that the findings of the
district court in the § 2-105(B)(5) hearing were so unsubstanti-
ated that any purported errors were injurious to the integrity,
reputation, or fairness of the judicial process as to justify
reversal on appeal under the plain error doctrine.16
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
Court of Appeals.
Affirmed.
Heavican, C.J., and Cassel, J., not participating.
15
Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014).
16
See id.State of Nebraska, appellee, v.
Tillman T. Henderson, appellant.
___ N.W.2d ___
Filed October 17, 2014. No. S-13-559.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
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5. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court’s
conclusions with regard to evidentiary foundation and witness qualification for an
abuse of discretion.
6. Criminal Law: Pretrial Procedure: Appeal and Error. Discovery in a criminal
case is generally controlled by either a statute or court rule. Therefore, unless
granted as a matter of right under the Constitution or other law, discovery is
within the discretion of a trial court, whose ruling will be upheld on appeal unless
the trial court has abused its discretion.
7. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within
the trial court’s discretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.
8. Search and Seizure: Arrests: Police Officers and Sheriffs. The police gener-
ally may not, without a warrant, search digital information on a cell phone seized
from an individual who has been arrested.
9. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In review-
ing the strength of an affidavit submitted as a basis for finding probable cause to
issue a search warrant, an appellate court applies a totality of the circumstances
test. The question is whether, under the totality of the circumstances illustrated
by the affidavit, the issuing magistrate had a substantial basis for finding that the
affidavit established probable cause.
10. Search Warrants: Probable Cause: Words and Phrases. Probable cause suf-
ficient to justify issuance of a search warrant means a fair probability that contra-
band or evidence of a crime will be found.
11. Constitutional Law: Probable Cause. In addition to the requirement of probable
cause, the Fourth Amendment contains a particularity requirement.
12. Constitutional Law: Search and Seizure: Search Warrants: Probable Cause.
The Fourth Amendment’s particularity requirement must be respected in con-
nection with the breadth of a permissible search of the contents of a cell phone.
Accordingly, a warrant for the search of the contents of a cell phone must be
sufficiently limited in scope to allow a search of only that content that is related
to the probable cause that justifies the search.
13. ____: ____: ____: ____. The particularity requirement of the Fourth Amendment
protects against open-ended warrants that leave the scope of the search to the
discretion of the officer executing the warrant, or permit seizure of items other
than what is described.
14. Search Warrants: Search and Seizure. A warrant satisfies the particularity
requirement if it leaves nothing about its scope to the discretion of the officer
serving it. That is, a warrant whose authorization is particular has the salutary
effect of preventing overseizure and oversearching.
15. Motions to Suppress: Search Warrants: Affidavits: Police Officers and
Sheriffs: Evidence: Search and Seizure. The good faith exception to the
exclusionary rule provides that evidence seized under an invalid warrant need
not be suppressed when police officers act in objectively reasonable good faith
in reliance upon the warrant. Nevertheless, evidence suppression will still be
appropriate if one of four circumstances exists: (1) The magistrate or judge in
issuing the warrant was misled by information in an affidavit that the affiant
knew was false or would have known was false except for his or her reckless
Nebraska Advance Sheets
STATE v. HENDERSON 273
Cite as 289 Neb. 271disregard for the truth; (2) the issuing magistrate wholly abandoned his or her
judicial role; (3) the supporting affidavit was so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable; or (4)
the warrant is so facially deficient that the executing officer cannot reasonably
presume it to be valid.
16. Search and Seizure: Police Officers and Sheriffs. The good faith inquiry is
confined to the objectively ascertainable question whether a reasonably well-
trained officer would have known that the search was illegal despite a magis-
trate’s authorization.
17. Search Warrants: Affidavits: Police Officers and Sheriffs: Appeal and Error.
In assessing the good faith of an officer’s conducting a search under a warrant,
an appellate court must look to the totality of the circumstances surrounding the
issuance of the warrant, including information not contained within the four cor-
ners of the affidavit.
18. Criminal Law: Trial: Evidence. Where objects pass through several hands
before being produced in court, it is necessary to establish a complete chain of
evidence, tracing the initial possession of the object or article to its final custo-
dian; and if one link in the chain is missing, the object may not be introduced
in evidence.
19. Trial: Evidence: Proof. Proof that an exhibit remained in the custody of law
enforcement officials is sufficient to prove a chain of possession and is sufficient
foundation to permit its introduction into evidence.
20. Trial: Evidence. Whether there is sufficient foundation to admit physical evi-
dence is determined on a case-by-case basis.
21. Hearsay: Words and Phrases. Hearsay is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.
22. Criminal Law: Due Process: Pretrial Procedure. A defendant in a criminal
proceeding has no general due process right to discovery.
23. Criminal Law: Constitutional Law: Due Process: Rules of Evidence. Whether
rooted directly in the Due Process Clause of the 14th Amendment or in the
Compulsory Process or Confrontation Clauses of the 6th Amendment, the federal
Constitution guarantees criminal defendants a meaningful opportunity to present
a complete defense.
24. Pretrial Procedure. A defendant does not have an unfettered right to discovery.
25. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
26. Motions for Mistrial: Proof. A defendant faces a higher threshold than merely
showing a possibility of prejudice when attempting to prove error predicated
on the failure to grant a mistrial. Instead, the defendant must prove the alleged
error actually prejudiced him or her, rather than creating only the possibility
of prejudice.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
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Thomas C. Riley, Douglas County Public Defender, Matthew
J. Miller, and Zoё R. Wade for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Tillman T. Henderson appeals his convictions in the district
court for Douglas County for several felonies. He claims, inter
alia, that the district court erred when it denied his motion to
suppress evidence obtained from a search of the contents of
a cell phone that was found on his person at the time he was
arrested. We affirm Henderson’s convictions and sentences.
II. STATEMENT OF FACTS
1. Charges and General Evidence
Henderson was convicted of first degree murder in connec-
tion with the shooting death of Matthew Voss and attempted
first degree murder in connection with the shooting of Antonio
Washington. He was convicted of two counts of use of a deadly
weapon to commit a felony in connection with the forego-
ing crimes. He was also convicted of possession of a deadly
weapon by a prohibited person.
Testimony at trial indicated that in the early morning hours
of February 18, 2012, a fight broke out at an after-hours party
in downtown Omaha, Nebraska. Witnesses reported seeing two
men firing guns. Voss and Washington both sustained gunshot
wounds; Voss died as a result of his wounds, while Washington
survived but was severely injured.
Henderson was apprehended by police as he was running
from the scene of the incident. A person who was at the scene
had identified Henderson to a police officer as one of the
shooters. The other suspect was not apprehended. One gun
was found on Henderson’s person when he was arrested, and
a police officer saw Henderson throw another gun under a
vehicle as the officer was chasing him.
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Cite as 289 Neb. 271Forensic evidence presented at trial indicated that bullets
and casings found at the scene of the shootings had been fired
from the gun found on Henderson and from the gun he was
seen throwing under a vehicle. A fingerprint on the gun found
under the vehicle matched Henderson’s. In addition, DNA
testing of blood found on the clothing worn by Henderson
at the time of his arrest indicated that the blood had come
from Voss.
The State maintained at trial that Henderson shot Voss and
Washington to retaliate for an assault on Henderson’s friend,
Jimmy Levering. Levering and Voss had both been inmates
at a prison in Florida, and Voss had allegedly stabbed and
punched Levering.
2. Apprehension of Henderson
Omaha police officer Paul Sarka responded to a call regard-
ing a fight or disturbance in the area of 16th and Harney
Streets around 3 a.m. on February 18, 2012. Sarka saw a group
of people outside a building in the area, but he did not see a
disturbance. He circled the block and then pulled his police
cruiser into an alley to park and write a report on his response
to the call. Soon after parking, Sarka heard several gunshots.
He pulled his cruiser out of the alley and, with the lights and
sirens turned on, drove in the direction from which he thought
he had heard the gunshots, which direction was toward the
group of people he had seen near 16th and Harney Streets. As
he drove, he radioed a message to dispatch saying, “‘Shots
were fired. Send more officers.’”
Sarka saw 20 to 30 people running from the scene scream-
ing and looking like they were in fear. Sarka yelled out of his
cruiser’s window to the people asking them who had done the
shooting, but he did not get a response. The driver of a white
sport utility vehicle rolled down his window, and when Sarka
asked whether the driver had seen who did the shooting, the
driver replied that it was “‘the black male running down the
sidewalk of this side of the street in the tan Carhartt.’” Sarka
saw only one man in the group of people running on the side-
walk who was wearing a tan Carhartt jacket; the man was later
identified as Henderson.
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Sarka yelled at Henderson, “‘Police, stop.’” Henderson
made eye contact with Sarka but then turned and continued
running. Sarka chased Henderson, first in his cruiser and then
on foot. As Sarka was chasing Henderson on foot, another
police cruiser came toward Henderson which caused him to
change direction. Sarka saw Henderson pull an object that
looked like a gun out of his waistband or pocket and throw
the object under a vehicle that was parked on the street. Sarka
continued to chase Henderson and was joined by another
officer. The two eventually tackled Henderson and hand-
cuffed him. Sarka turned Henderson over to another officer,
Fred Hiykel. Sarka returned to the place where he had seen
Henderson throw the object under a vehicle. The object proved
to be a gun.
Hiykel responded to Sarka’s “‘Shots were fired’” call and
arrived just as Sarka took Henderson into custody. Hiykel
escorted Henderson to his police cruiser. Hiykel searched
Henderson and found a handgun in his pocket. He removed the
gun and put it in a plastic evidence bag. Hiykel put Henderson
into the back of his cruiser and drove him to police headquar-
ters. In the interview room, Hiykel removed other personal
property from Henderson’s person and placed the property in
an evidence bag.
3. Search of Cell Phone
Dave Schneider was one of the homicide detectives from
the Omaha Police Department (OPD) assigned to investigate
the shootings. One of Schneider’s duties was to obtain a search
warrant for a cell phone that was among the items of personal
property taken from Henderson upon his arrest. Schneider
himself had not come into contact with the cell phone, but he
knew that other officers had turned the cell phone on to obtain
its serial number and telephone number. Schneider testified
that the other officers had placed the cell phone into “airplane
mode” so that the cell phone could not be remotely accessed
for the purpose of deleting data. Schneider prepared an affi-
davit and application for issuance of a warrant to search the
contents of the cell phone. In the affidavit and application,
Schneider generally requested a warrant to search “[a]ny and
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STATE v. HENDERSON 277
Cite as 289 Neb. 271all information” contained on the cell phone. He specifically
listed contacts, cell phone call lists, text messages, and voice-
mails, and he also requested “any other information that can be
gained from the internal components and/or memory Cards.”
As grounds for the issuance of the warrant, Schneider asserted
that Henderson was a suspect in a shooting and that the cell
phone was in Henderson’s possession when he was arrested.
The county court for Douglas County issued the requested
search warrant on February 18, 2012.
The search of the cell phone was conducted by another
detective, Nick Herfordt, during the afternoon of February 18,
2012. Herfordt downloaded information from the cell phone,
including the contact list, call history, and text messages.
Included in the information downloaded was a series of text
messages exchanged between the cell phone and another num-
ber between 2:34 a.m. and 3:11 a.m. on February 18. Messages
coming from the other number included two which stated,
“That Nigga that stab Jb up here” and “After hour on har-
ney downtown.” Messages sent from the searched cell phone
included two which stated, “On my way keep close eye” and
“Im out side wat up?” Other messages appear to indicate that
the two persons exchanging the messages were attempting to
meet up with one another outside the location mentioned in
earlier messages. Herfordt also found a picture that was used
as “wallpaper,” or the background on the cell phone’s screen.
The picture depicted a man, and at trial, witnesses identified
the man in the picture as Levering.
Prior to trial, on June 13, 2012, Henderson filed a motion to
suppress evidence obtained from the search of the cell phone.
He asserted, inter alia, that the affidavit supporting the request
for the search warrant “did not contain sufficient information
to establish probable cause to believe a crime or evidence of
a crime would be found on [Henderson’s] cellular telephone.”
The district court held a hearing on the motion to suppress on
August 16. However, before the court ruled on the motion to
suppress, Schneider obtained a second warrant to search the
cell phone.
The affidavit Schneider submitted to the county court in
support of the second warrant included the same information
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that had been included in the request for the first warrant, but
there was additional language stating:
In Affiant Officers [sic] experience and training as a
detective it is known that suspects that we have had con-
tact with use cell phones to communicate about shootings
that they have been involved it [sic], before, during, and
afterwards. The communication can be though [sic] voice,
text, and social media, to name a few.
The county court issued a second search warrant based on the
new affidavit on September 14. On September 20, Herfordt
searched the contents of the cell phone a second time.
On November 13, 2012, Henderson filed a motion to sup-
press evidence obtained from the second search of the cell
phone, and the district court held a hearing on the motion on
November 19. The court entered an order on January 17, 2013,
overruling Henderson’s motion to suppress evidence obtained
from the second search. The court agreed with Henderson’s
argument that the affidavit submitted in support of the first
search warrant issued on February 18, 2012, did not suffi-
ciently state why a search of the cell phone would produce
evidence relevant to the crimes for which Henderson was
arrested and that therefore, there was not probable cause to
support the first search warrant. But the court continued that
no warrant was necessary because, in its view, the search of the
cell phone, which was found on Henderson at the time of his
arrest, was a valid warrantless search incident to his arrest. The
court stated that because no warrant was needed to conduct the
search, issues regarding the validity of the second search war-
rant were moot.
Notwithstanding its conclusion that a warrant was not
required, the district court addressed the warrant issue “in the
event it is eventually determined that the Court is in error on
that issue” regarding the need for a warrant. The court rejected
Henderson’s argument that the second warrant was an attempt
to rehabilitate the deficiencies of the first warrant and that the
second warrant was tainted by the execution of the first war-
rant. The court concluded that “there is little or no evidence
that ‘but for’ the execution of the first search warrant the State
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Cite as 289 Neb. 271would not have searched the cellular telephone using the prop-
erly issued second search warrant.”
After Henderson filed a motion to reconsider the ruling on
the motion to suppress, the court held another hearing focused
on the validity of the second search warrant. On February
7, 2013, the court entered an order overruling the motion to
reconsider and suppress evidence obtained from the second
search. In the order, the court specifically determined that
the affidavit offered in support of the second search war-
rant, which included the additional language quoted above,
established probable cause to search the cell phone. The court
concluded that the second search warrant was properly issued
and executed.
4. Issues P rior to and During Trial
Prior to trial, OPD filed a motion for a protective order
against a subpoena duces tecum that had been served by
Henderson. The subpoena requested the keeper of OPD’s
records to appear at trial and provide a copy of gang files
related to Henderson and to an individual known as JB. At a
hearing on the motion, OPD argued that the files were confi-
dential and subject to confidentiality restrictions imposed by
OPD and the federal government. OPD further asserted that
disclosure of such information could jeopardize its efforts in
monitoring gang activity.
At the hearing on OPD’s motion, the court also considered
motions in limine Henderson had filed seeking to preclude
the State from adducing evidence regarding gang affiliations.
At this hearing, the State represented that it had not seen
any of the OPD files and that it did not intend to introduce
any evidence at trial regarding gang affiliation. The court
granted OPD’s motion for a protective order but indicated
that it might change its ruling if at trial the State introduced
evidence to establish that the “JB” referred to in the text
message found on Henderson’s cell phone was Levering and
if such evidence was derived from information in the OPD
gang files.
Herfordt testified at trial. When the State began to ques-
tion Herfordt regarding his search of the cell phone and the
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evidence he obtained from the search, Henderson made a foun-
dation objection that a proper chain of custody had not been
established for the cell phone. The court initially sustained the
foundation objection, and the State recalled Hiykel as a wit-
ness regarding the chain of custody. Hiykel testified generally
that after Henderson’s arrest, he took all items that Henderson
had on his person and put them into an evidence bag; how-
ever, Hiykel did not specifically recall taking a cell phone.
Herfordt then returned to the stand, and upon questioning by
the State, identified the cell phone as the one that he booked
into property in connection with the present case. When the
State offered the cell phone into evidence, Henderson objected
based on foundation and the court admitted the cell phone into
evidence over the objection.
Henderson also renewed his objections that the evidence
was obtained in violation of his Fourth Amendment rights
against unreasonable searches. The court overruled the objec-
tions based on its prior alternative rulings that the search of
the cell phone was valid as a warrantless search incident to
Henderson’s arrest, that the second search warrant was valid
and supported by probable cause, and that the search conducted
pursuant thereto was legal.
Herfordt testified regarding what he found in his search
of the cell phone. He testified that the background picture
that came up on the screen when the cell phone was turned
on “was that of someone known to be Jimmy Levering.”
Henderson objected based on foundation, and the court sus-
tained the objection. The State attempted to provide founda-
tion by asking Herfordt how he knew the identity of the person
in the picture. Herfordt replied, “I worked Northeast Omaha
when I was in uniform, and Jimmy Levering, I guess, was
kind of an infamous gang member . . . .” Henderson imme-
diately moved for a mistrial based on Herfordt’s reference to
gang affiliations, noting that the State had agreed in connec-
tion with Henderson’s pretrial motion in limine that it would
not introduce evidence regarding gang affiliations. The court
overruled the motion for a mistrial, and the State continued
questioning Herfordt regarding how he knew the person in the
picture was Levering. Herfordt testified that he had not had
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STATE v. HENDERSON 281
Cite as 289 Neb. 271personal contact with Levering but had seen pictures of him
in the course of previous investigations. The State offered the
picture taken from the cell phone into evidence, and the court
overruled Henderson’s objections based on foundation and
Fourth Amendment grounds.
Herfordt also testified regarding the text messages that
he found on the cell phone. Henderson objected to evidence
regarding text messages on the basis that the evidence was
inadmissible hearsay. The State argued that the evidence was
not being offered to prove the truth of the matter asserted but
to show the effect the messages had on Henderson. The court
overruled the hearsay objection.
The State also called Ramone Narvaez as a witness. Narvaez
was a correctional officer from a federal penitentiary in Florida.
Narvaez testified that in December 2009, Levering, who was
then an inmate at the penitentiary, ran into his office followed
by three other inmates who started punching Levering. Narvaez
testified that he and other officers broke up the fight and that
Levering was taken to the medical unit because he was bleed-
ing from his torso. Narvaez testified that the last name of one
of the other inmates was “Voss” but that he did not know Voss’
first name. Narvaez was shown the picture that was taken from
the cell phone, and he testified that the person in the picture
was the same person who had been involved in the incident
in Florida.
After the cross-examination and redirect testimony of
Narvaez were completed, Henderson moved for a mistrial or, in
the alternative, for an order striking Narvaez’ testimony on the
basis that he was not able to establish that the “Voss” to whom
he referred in his testimony was the “Matthew Voss” who was
a victim in this case and that he had not testified that Levering
was stabbed. Henderson argued that without establishing these
facts, Narvaez’ testimony was unfairly prejudicial. The court
overruled the motion for a mistrial and the motion to strike
the testimony.
The State also called Omaha Police Det. Christopher Perna
as a witness. Perna was shown the picture from the cell
phone, and he identified that person as Levering. Perna testi-
fied that he had personally interviewed Levering in the course
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of other investigations. Perna also testified that he had briefly
interviewed a “Matthew Voss” on March 31, 2010, at a federal
penitentiary in Florida and that Levering’s name “came up” in
the interview. Perna was shown a picture of the victim in this
case, and Perna testified that the person in the picture was the
“Matthew Voss” he had interviewed in Florida.
5. Convictions and Sentences
The jury found Henderson guilty of first degree murder,
attempted first degree murder, two counts of use of a deadly
weapon to commit a felony, and possession of a deadly weapon
by a prohibited person. The court sentenced Henderson to
imprisonment for life for first degree murder, for 50 to 50 years
for attempted first degree murder, for 20 to 20 years on each
of the convictions for use of a deadly weapon, and for 20 to
20 years on the conviction for possession of a deadly weapon
by a prohibited person. The court ordered the sentences to be
served consecutively.
Henderson appeals his convictions.
III. ASSIGNMENTS OF ERROR
Henderson claims that the district court erred when it (1)
overruled his motion to suppress evidence obtained from the
search of the cell phone; (2) admitted evidence obtained from
the allegedly illegal search of the cell phone, including text
messages and pictures; (3) admitted evidence of items found on
the cell phone over his foundation objections; (4) admitted evi-
dence of text messages over his hearsay objections; (5) granted
OPD’s motion for a protective order relating to gang files; (6)
denied Henderson’s motion for a mistrial based on Herfordt’s
testimony that Levering was “an infamous gang member”; (7)
denied his motion to strike Herfordt’s testimony for lack of
foundation identifying Levering as the person in the cell phone
picture; and (8) overruled his motion for a mistrial and his
motion to strike Narvaez’ testimony.
IV. STANDARDS OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
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STATE v. HENDERSON 283
Cite as 289 Neb. 271Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. State v. Au, 285 Neb. 797, 829 N.W.2d
695 (2013).
[2-4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Merchant, 285 Neb. 456, 827 N.W.2d 473(2013). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Id. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.[5] An appellate court reviews the trial court’s conclusions
with regard to evidentiary foundation and witness qualification
for an abuse of discretion. State v. Ramirez, 287 Neb. 356, 842
N.W.2d 694 (2014).
[6] Discovery in a criminal case is generally controlled by
either a statute or court rule. Therefore, unless granted as a
matter of right under the Constitution or other law, discovery
is within the discretion of a trial court, whose ruling will be
upheld on appeal unless the trial court has abused its discre-
tion. State v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2012).
[7] Whether to grant a mistrial is within the trial court’s dis-
cretion, and an appellate court will not disturb its ruling unless
the court abused its discretion. Ramirez, supra.
V. ANALYSIS
1. District Court Did Not Err When It
Overruled Henderson’s Motion to
Suppress Evidence Obtained From
Search of Cell Phone
Henderson claims that the district court erred when it
overruled his motion to suppress evidence obtained from
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the search of his cell phone and when it admitted evidence
obtained from the allegedly illegal search of the cell phone.
We determine that the search was not justified as a warrant-
less search incident to arrest and that there was probable cause
to issue the warrant, but that the scope of the search warrant
lacked particularity and was too broad to protect privacy inter-
ests in the contents of the cell phone. However, we conclude
that the search was conducted in good faith reliance on the
warrant and that therefore, the district court did not err when
it overruled the motion to suppress and when it admitted evi-
dence obtained from the search.
(a) Search Was Not Justified as
Search Incident to Arrest
When it overruled the motion to suppress, the district court
determined that because the cell phone was found in a search
of Henderson’s person at the time he was arrested, subsequent
searches of the contents of the cell phone were proper as
searches incident to an arrest. Contrary to the district court’s
reasoning, we conclude that the searches of the cell phone con-
tents were not justified as searches incident to arrest.
[8] The U.S. Supreme Court recently held in Riley v.
California, ___ U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430(2014), that the police generally may not, without a warrant,
search digital information on a cell phone seized from an
individual who has been arrested. The Court reasoned that a
search of digital information on a cell phone does not further
the government interests identified in other cases authorizing
the search of a person and his or her effects incident to an
arrest, which interests include addressing the threat of harm to
officers and preventing the destruction of evidence. The Court
stated that such interests must be balanced against the indi-
vidual privacy interests at stake.
In Riley, the Court determined that the digital data stored
on a cell phone did not present a risk of being used as a
weapon to harm an arresting officer and that the potential risk
of destruction of evidence could be prevented by seizing and
securing the cell phone itself. The Court further determined
that as compared to the diminished privacy interests involved
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STATE v. HENDERSON 285
Cite as 289 Neb. 271in the physical search of an arrestee, the search of data on a
cell phone implicated substantial privacy interests. The Court
noted that cell phones “differ in both a quantitative and a
qualitative sense from other objects that might be kept on an
arrestee’s person” because they collect in one place distinct
types of information that could reveal significant knowledge
regarding an individual’s private interests and activities. 134
S. Ct. at 2489. The Court further noted that such a search
could extend well beyond evidence in physical proximity to
the arrestee because data viewed on a cell phone could be
stored on a remote server. The Court acknowledged that exi-
gent circumstances could justify a warrantless search but held
that as a general matter, the warrantless search of a cell phone
seized from an arrestee is not justified as a search incident to
an arrest, and that before searching a cell phone, the police
must get a warrant. For completeness, we add that based on the
facts recited, we understand the relief actually extended to the
defendant in Riley was limited to data stored on the seized cell
phone, and not explicitly extended to data stored in the cloud
network or accessible from another device.
The present appeal was pending before this court when the
opinion in Riley was filed on June 25, 2014. The parties were
asked to comment on the application of Riley to this case.
The State concedes that Riley would be applicable to any case
that was on direct review when it was decided. We agree that
Riley applies in this case. See State v. Castaneda, 287 Neb.
289, 314, 842 N.W.2d 740, 759 (2014) (“‘a new rule for the
conduct of criminal prosecutions is to be applied retroactively
to all cases, state or federal, pending on direct review or not
yet final, with no exception for cases in which the new rule
constitutes a “clear break” with the past’”) (quoting Griffith
v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d
649 (1987)).
In the present case, there is no indication that there were
exigent circumstances that required the police to search the
contents of Henderson’s cell phone without taking the time
to obtain a warrant. To the contrary, any argument that there
were exigent circumstances would likely fail in light of the
fact that the police actually waited until they obtained a
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warrant before they searched the cell phone. We therefore
conclude that under the U.S. Supreme Court’s holding in
Riley, the district court erred when it concluded that the
search of Henderson’s cell phone was justified or necessi-
tated as a search incident to arrest. Because a search of the
contents of Henderson’s cell phone required a warrant, we
must consider whether the evidence Henderson sought to be
suppressed was obtained in a search that was supported by a
valid warrant.
(b) Validity of Search Warrants
In the event the district court was wrong in its conclusion
that the searches of the cell phone were justified as war-
rantless searches incident to arrest, it considered whether
there was a valid search warrant in this case. The court con-
cluded that there was not probable cause to support the first
search warrant, but then concluded in its February 7, 2013,
order that the second search warrant was supported by prob-
able cause and that “the search warrant was properly issued
and executed.”
The Fourth Amendment provides that warrants may not
be granted “but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” The Nebraska
Constitution similarly provides that “no warrant shall issue but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the person
or thing to be seized.” Neb. Const. art. I, § 7. Although the
district court found probable cause to support a search warrant,
it did not analyze whether the scope of the warrant as issued
met the particular requirement. We conclude that although
there was probable cause to support issuance of both warrants,
the warrants as issued were too broad to meet the particularity
requirement of the Fourth Amendment.
(i) Probable Cause
[9,10] We first consider whether the affidavits submitted by
the police established probable cause for issuance of the search
warrants. In reviewing the strength of an affidavit submitted
Nebraska Advance Sheets
STATE v. HENDERSON 287
Cite as 289 Neb. 271as a basis for finding probable cause to issue a search warrant,
an appellate court applies a totality of the circumstances test.
State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013). The
question is whether, under the totality of the circumstances
illustrated by the affidavit, the issuing magistrate had a sub-
stantial basis for finding that the affidavit established prob-
able cause. Id. Probable cause sufficient to justify issuance of
a search warrant means a fair probability that contraband or
evidence of a crime will be found. State v. Sprunger, 283 Neb.
531, 811 N.W.2d 235 (2012).
In the affidavits filed in support of both the first and sec-
ond warrants in this case, Schneider stated as grounds for the
issuance of a search warrant that police had been dispatched
to the scene where two victims had suffered gunshot wounds,
that witnesses had seen two men firing at a victim, that an
officer saw two men running from the scene, that one of the
two men was later identified as Henderson, that the offi-
cer chased Henderson and saw Henderson throw a handgun
under a vehicle, and that officers searched Henderson and
found a handgun in his pocket and a cell phone in his posses-
sion. Schneider stated that the warrant for the search of the
cell phone was requested to assist in a homicide investiga-
tion. In the affidavit submitted to obtain the second warrant,
Schneider added language stating that in his experience as
a detective, he knew that suspects used cell phones to com-
municate about shootings they have been involved in before,
during, and after the shootings and that such communica-
tions could be through, inter alia, voice or text messages or
social media.
We determine that both affidavits provided the county
court a substantial basis to find that probable cause existed
to search the contents of the cell phone. The affidavits estab-
lished that two victims had been shot, that two men commit-
ted the shootings, that Henderson was one of two men seen
running from the scene, that Henderson threw one gun under
a vehicle, and that he had another gun in his possession. The
allegations established a fair probability that Henderson was
involved in the shootings. The allegations also indicated that
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two people were shooters. Because Henderson was working
with at least one other person to commit the shootings, it is
reasonable to infer that the cell phone that was in his pos-
session was used to communicate with others regarding the
shootings before, during, or after they occurred. We believe
that the court that issued the search warrant could have
reached this inference without the additional allegations that
cell phones are used in relation to crimes found in the second
affidavit. The court therefore had a basis to determine that
the cell phone would contain evidence regarding the shoot-
ings and that probable cause existed to support issuance of
the search warrants.
(ii) Particularity
[11] Although there was probable cause that a search of
the cell phone would provide relevant evidence, we do not
think that such probable cause justified the scope of the
search warrants actually issued by the county court in this
case. We have noted that in addition to the requirement of
probable cause, the Fourth Amendment contains a particular-
ity requirement. See State v. Sprunger, 283 Neb. 531, 811
N.W.2d 235 (2012). As noted above, the Fourth Amendment
states in part that “no Warrants shall issue, but upon prob-
able cause . . . and particularly describing the place to be
searched, and the persons or things to be seized.” We stated
in Sprunger that “[t]he Founding Fathers’ abhorrence of the
English King’s use of general warrants—which allowed royal
officials to engage in general exploratory rummaging in a
person’s belongings—was the impetus for the adoption of
the Fourth Amendment. Simply put, the Fourth Amendment
prohibits ‘fishing expeditions.’” 283 Neb. at 539, 811 N.W.2d
at 243. In Sprunger, we observed that allowing the unfettered
search of a computer’s contents would allow officers to go
“rummaging through a treasure trove of information.” 283
Neb. at 540, 811 N.W.2d at 244. We further stated, “‘“[T]he
modern development of the personal computer and its ability
to store and intermingle a huge array of one’s personal papers
in a single place increases law enforcement’s ability to con-
duct a wide-ranging search into a person’s private affairs.”’”
Nebraska Advance Sheets
STATE v. HENDERSON 289
Cite as 289 Neb. 271Id. at 540-41, 811 N.W.2d at 244 (quoting Mink v. Knox, 613
F.3d 995 (10th Cir. 2010), quoting U.S. v. Otero, 563 F.3d
1127 (10th Cir. 2009)).
The concerns we noted with regard to the vast amount of
data stored on computers in Sprunger were echoed by the
U.S. Supreme Court with regard to cell phones in Riley v.
California, ___ U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430(2014). As we have quoted above, the Court in Riley stated,
“Cell phones differ in both a quantitative and a qualitative
sense from other objects that might be kept on an arrestee’s
person.” 134 S. Ct. at 2489. The Court in Riley noted that such
quantitative and qualitative differences included the “immense
storage capacity” of cell phones, their “ability to store many
different types of information,” their functioning as “a digital
record of nearly every aspect of their [owners’] lives,” and
their ability to “access data located elsewhere.” 134 S. Ct.
at 2489-90.
[12] Given the privacy interests at stake in a search of a cell
phone as acknowledged by the Court in Riley and similar to our
reasoning in Sprunger, we think that the Fourth Amendment’s
particularity requirement must be respected in connection with
the breadth of a permissible search of the contents of a cell
phone. Accordingly, we conclude that a warrant for the search
of the contents of a cell phone must be sufficiently limited in
scope to allow a search of only that content that is related to
the probable cause that justifies the search.
[13,14] It has been observed that the particularity require-
ment of the Fourth Amendment protects against open-ended
warrants that leave the scope of the search to the discretion of
the officer executing the warrant, or permit seizure of items
other than what is described. U.S. v. Clark, 754 F.3d 401 (7th
Cir. 2014). A warrant satisfies the particularity requirement
if it leaves nothing about its scope to the discretion of the
officer serving it. Id. That is, a warrant whose authorization
is particular has the salutary effect of preventing overseizure
and oversearching.
In this case, both warrants containing identical language
were defective for failing to meet the particularity require-
ment of the Fourth Amendment. The warrants did not refer
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to the specific crime being investigated or to the type of
information encompassed by their authorization. The warrants
authorized a search of “[a]ny and all information.” Although
the warrants listed types of data, such as cell phone calls and
text messages, they concluded with a catchall phrase stating
that they authorized a search of “any other information that
can be gained from the internal components and/or memory
Cards.” We conclude that the search warrants in this case did
not comply with the particularity requirement because they
did not sufficiently limit the search of the contents of the
cell phone.
We are aware that there is currently a discussion in state
and federal courts regarding whether a court issuing a warrant
has the authority to—or should—set forth a protocol specify-
ing how the search of digital data should be conducted. See,
e.g., U.S. v. Comprehensive Drug Testing, Inc., 621 F.3d 1162(9th Cir. 2010) (en banc) (Kozinski, Chief Judge, concurring;
Kleinfeld, Fletcher, Paez, and Smith, Circuit Judges, join); In
re Search Warrant, 193 Vt. 51, 71 A.3d 1158 (2012). See, also,
Orin S. Kerr, Ex Ante Regulation of Computer Search and
Seizure, 96 Va. L. Rev. 1241 (2010), and Paul Ohm, Massive
Hard Drives, General Warrants, and the Power of Magistrate
Judges, 97 Va. L. Rev. in Brief 1 (2011). In a related area,
we are also aware that certain jurisdictions have adopted
statutes that require that authorizations to conduct electronic
surveillance include procedures for minimizing the capture of
nonpertinent information. E.g., N.Y. Crim. Proc. § 700.30(7)
(McKinney 2009). However, the warrants in the present case
did not set forth such a protocol and we need not consider
whether such a protocol is required or even proper.
The parameters of how specific the scope of a warrant
to search the contents of a cell phone must be will surely
develop in the wake of Riley v. California, ___ U.S. ___,
134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). In the present
case, because the search warrants allowed a search of “[a]ny
and all” content, their scope was clearly not sufficiently par-
ticular and therefore the warrants did not meet the Fourth
Amendment particularity requirement and were invalid for
this reason.
Nebraska Advance Sheets
STATE v. HENDERSON 291
Cite as 289 Neb. 271(iii) Good Faith
The State contends that even if the search warrants were not
valid, exclusion of the evidence is not required because of the
good faith exception. We agree that application of the good
faith exception is appropriate in this case.
That a Fourth Amendment violation occurred does not
necessarily mean that the exclusionary rule applies. State v.
Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012). The Fourth
Amendment contains no provision expressly precluding the
use of evidence obtained in violation of its commands. The
U.S. Supreme Court has held that for the exclusionary rule to
apply, the benefits of its deterrence must outweigh its costs.
Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L.
Ed. 2d 496 (2009). Recognizing that the benefits of deterrence
often do not outweigh the social costs of exclusion, the U.S.
Supreme Court created the good faith exception to the exclu-
sionary rule. Id.[15] The good faith exception provides that evidence seized
under an invalid warrant need not be suppressed when police
officers act in objectively reasonable good faith in reliance
upon the warrant. Nevertheless, evidence suppression will still
be appropriate if one of four circumstances exists: (1) The
magistrate or judge in issuing the warrant was misled by infor-
mation in an affidavit that the affiant knew was false or would
have known was false except for his or her reckless disregard
for the truth; (2) the issuing magistrate wholly abandoned his
or her judicial role; (3) the supporting affidavit was so lacking
in indicia of probable cause as to render official belief in its
existence entirely unreasonable; or (4) the warrant is so facially
deficient that the executing officer cannot reasonably presume
it to be valid. See Sprunger, supra.
[16,17] We have said that the “‘good-faith inquiry is con-
fined to the objectively ascertainable question whether a rea-
sonably well-trained officer would have known that the search
was illegal despite a magistrate’s authorization.’” Id. at 542,
811 N.W.2d at 245. Officers are assumed to “‘have a reason-
able knowledge of what the law prohibits.’” Id. In assessing
the good faith of an officer’s conducting a search under a
warrant, an appellate court must look to the totality of the
Nebraska Advance Sheets
292 289 NEBRASKA REPORTS
circumstances surrounding the issuance of the warrant, includ-
ing information not contained within the four corners of the
affidavit. Id.
In connection with the inquiry just noted, there is no indica-
tion in this case that the officers would reasonably have known
of the defects in the warrants as authorized. Further, there is no
indication that the police used the warrant to conduct a search
for evidence other than that related to the shootings investiga-
tion. The evidence that the officers obtained and that the State
offered at trial was limited to evidence that was relevant to the
shootings under investigation and that would have been found
pursuant to a properly limited warrant.
Circumstances that might require suppression despite a good
faith execution are not present here. There is no indication that
the issuing court was misled by false information in the affi-
davit, that the issuing court wholly abandoned its judicial role,
or that probable cause was obviously lacking. As we discussed
above, the affidavits provided probable cause and, therefore,
it was not unreasonable for officers executing the warrants to
presume them to be valid. And although the warrants contained
language that made them too broad to satisfy the particularity
requirement, they also contained references to specific items
that did not make the warrants so facially deficient that the
officers could not reasonably presume them to be valid and the
search legal. We conclude that the good faith exception applies
to this case.
(c) Conclusion
We determine that although the scope of the search warrants
was not properly limited in compliance with the particularity
requirement of the Fourth Amendment, the issuance of the war-
rants was reasonable and the warrants were carried out in good
faith. We further note that the State did not offer evidence that
would not have been discovered pursuant to a sufficiently lim-
ited search warrant. Although our reasoning differs from that of
the district court, we conclude that the district court did not err
when it overruled the motions to suppress or when it admitted
evidence obtained from the search over Henderson’s Fourth
Amendment objections.
Nebraska Advance Sheets
STATE v. HENDERSON 293
Cite as 289 Neb. 2712. District Court Did Not Err When It
Overruled Henderson’s Other Objections
to A dmission of Evidence Obtained
From Search of Cell Phone
In addition to his claim that the district court erred when it
admitted evidence obtained from the search of the cell phone
because the search was illegal, which assertion we rejected
above, Henderson claims that the court erred when it admit-
ted evidence obtained from the search of the cell phone over
other objections based on foundation and hearsay. We conclude
that the district court did not err when it rejected Henderson’s
objections and admitted the evidence.
(a) Foundation and Chain of Custody
Henderson claims that the district court erred when it admit-
ted evidence obtained from the search of the cell phone because
there was not sufficient foundation to establish that the cell
phone that was searched was taken from Henderson’s person
at the time of his arrest. We reject this claim and conclude that
there was adequate foundation for admission of the cell phone
and evidence of its contents.
Henderson notes that Hiykel, the officer who searched
Henderson upon his arrest, testified at trial that he did not spe-
cifically recall removing a cell phone from Henderson’s per-
son. The district court sustained Henderson’s initial objection
to evidence of the contents of the cell phone based on founda-
tion and chain of custody. But the court received the evidence
after Hiykel provided additional testimony to the effect that
he searched Henderson’s person, placed Henderson’s personal
items into a bag, and watched Henderson and his personal
items until another officer took over observation.
[18-20] Where objects pass through several hands before
being produced in court, it is necessary to establish a complete
chain of evidence, tracing the initial possession of the object
or article to its final custodian; and if one link in the chain is
missing, the object may not be introduced in evidence. State v.
Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011). Proof that
an exhibit remained in the custody of law enforcement officials
is sufficient to prove a chain of possession and is sufficient
Nebraska Advance Sheets
294 289 NEBRASKA REPORTS
foundation to permit its introduction into evidence. State v.
Tolliver, 268 Neb. 920, 689 N.W.2d 567 (2004). Whether there
is sufficient foundation to admit physical evidence is deter-
mined on a case-by-case basis. Glazebrook, supra.
We note that in addition to Hiykel’s testimony regarding
his search and removal of items from Henderson’s person, the
State provided the testimony of another police officer who
took over observation of Henderson and his personal items
when Hiykel went off duty. That officer testified that when
he relieved Hiykel, the belongings he observed included a
coat and an evidence bag containing personal items. He testi-
fied that the items inside the bag included a cell phone. The
cell phone was eventually retrieved from the evidence bag
by Herfordt, who searched the contents and testified at trial
regarding the search.
The testimony indicates that the cell phone and the other
contents of the evidence bag remained in the possession of
law enforcement officials after their initial removal from
Henderson’s person, including during Herfordt’s subsequent
search of the contents. Such evidence provides adequate foun-
dation for the chain of custody of the cell phone. We conclude
that the district court did not abuse its discretion when it
determined that there was sufficient foundation regarding the
chain of custody of the cell phone. We reject this assignment
of error.
(b) Hearsay
Henderson also claims that the district court erred when it
admitted evidence of the content of the text messages over his
hearsay objections. We reject this claim.
Henderson filed a motion in limine prior to trial seeking to
preclude the State from introducing evidence of the content of
text messages found on the cell phone because the text mes-
sages were inadmissible hearsay. The district court overruled
the motion in limine based on the State’s argument that the evi-
dence was not being offered for the truth of the matters asserted
but instead in order to show the impact of the messages on
Henderson’s state of mind, which was relevant to proving pre-
meditation with respect to the charge of the first degree murder
Nebraska Advance Sheets
STATE v. HENDERSON 295
Cite as 289 Neb. 271of Voss. The district court also overruled Henderson’s renewed
hearsay objections during the trial.
[21] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. Neb. Evid.
R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2008). Under
Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2008),
hearsay is not admissible unless a specific exception to the
hearsay rule applies.
The text messages in this case were not admitted for the
truth of the statements contained therein but instead for the
purpose of showing their effect on Henderson. The State
used the messages to show that Henderson believed that an
individual who was responsible for an attack on an acquaint­
ance of his was at the location where the shootings would
eventually occur and that Henderson coordinated with other
individuals to go to that place in order to retaliate. The mes-
sages were not used to establish that the individual was at
that location or that the individual had attacked Henderson’s
acquaintance. Instead, the messages were offered to support
the State’s theory that Henderson went to the location for
the purpose of retaliating against the person who assaulted
his acquaintance, which was relevant to the premeditation
element of first degree murder. We therefore conclude that
because the evidence was not hearsay, the district court did
not err when it admitted the evidence over Henderson’s hear-
say objection.
With regard to this assignment of error, Henderson also
argues that the State erroneously asserted that the text mes-
sages met an exception to the hearsay rule as statements of
coconspirators. Because the evidence was not hearsay, we need
not consider whether the evidence would have met a hear-
say exception.
Finally, Henderson argues in connection with this assign-
ment of error that the district court erroneously rejected his
proposed limiting instruction with regard to the text messages.
We need not consider this argument because Henderson did
not assign error to the court’s rejection of the instruction.
We do not consider errors which are argued but not assigned.
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296 289 NEBRASKA REPORTS
State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009). We
reject this assignment of error.
3. District Court Did Not Abuse Its Discretion
With R espect to Discovery When It Granted
OPD’s Motion for P rotective Order
Henderson claims that the district court erred when it granted
OPD’s motion for a protective order relieving it of producing
files relating to gangs. We reject this assignment of error.
Henderson argues that the files were a proper subject for
discovery because they might contain information that would
affect the outcome of the trial. In particular, he asserts that
the State planned to show that the “JB” referenced in the text
messages was Levering and that information in the files might
indicate that there were other individuals who were also known
as JB, which information would be helpful to his defense.
Henderson argues that the protective order infringed his right
to present a complete defense.
The State argues in response that at trial, it did not introduce
evidence, either from the OPD files or from other sources, to
establish that “JB” was Levering. The State further contends
that Henderson was free to introduce evidence to establish
that “JB” was someone other than Levering, which he did not
do, or to argue that the State never established that “JB” was
Levering, which he did do in closing arguments.
[22] Discovery in a criminal case is generally controlled by
either a statute or court rule. Thus, unless granted as a matter
of right under the Constitution or other law, discovery is within
the discretion of a trial court, whose ruling will be upheld on
appeal unless the trial court has abused its discretion. State v.
Collins, 283 Neb. 854, 812 N.W.2d 285 (2012). A defendant
in a criminal proceeding has no general due process right to
discovery. Id.[23,24] Whether rooted directly in the Due Process Clause
of the 14th Amendment or in the Compulsory Process or
Confrontation Clauses of the 6th Amendment, the federal
Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense. State v. Phillips,
286 Neb. 974, 840 N.W.2d 500 (2013), cert. denied ___ U.S.
Nebraska Advance Sheets
STATE v. HENDERSON 297
Cite as 289 Neb. 271___, 134 S. Ct. 1899, 188 L. Ed. 2d 930 (2014). We have said,
however, with respect to admission of evidence, that a defend­
ant “‘does not have an unfettered right to offer testimony that
is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.’” Id. at 996, 840 N.W.2d at 519
(quoting Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L.
Ed. 2d 798 (1988)). Similarly, a defendant does not have an
unfettered right to discovery.
We conclude that the district court did not abuse its discre-
tion with respect to Henderson’s discovery of information con-
tained in the OPD gang files. OPD had valid reasons to refrain
from disclosing the information, and Henderson has failed
to show how information contained therein was necessary or
peculiarly helpful to his defense. As the State argues, the pros-
ecution used no evidence from the files or from other sources
to establish that “JB” was Levering.
With regard to a complete defense, if Henderson wanted
to present evidence that “JB” referred to someone other than
Levering, there likely would have been other sources better
familiar with the intended meaning of the “JB” reference in the
text message; any information in the gang files at best might
only have shown that other people were known as JB and
that one of those other persons might have been referenced in
the text message. Furthermore, Henderson was able to argue
and did so argue that the State did not prove that “JB” was
Levering and that therefore, the reference in the text message
may have been to someone else. The protective order did not
limit Henderson’s ability to present a complete defense.
The district court did not abuse its discretion with regard to
discovery of the gang files, and Henderson has not shown that
the court’s rulings prevented him from presenting a complete
defense. We reject this assignment of error.
4. District Court Did Not Abuse Its Discretion
When It Overruled Henderson’s Motion for
Mistrial Based on Testimony Describing
Levering as “infamous gang member”
Henderson next claims that the district court erred when
it overruled his motion for a mistrial based on Herfordt’s
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298 289 NEBRASKA REPORTS
comment that Levering was “an infamous gang member.” We
conclude that the district court did not abuse its discretion
when it overruled the motion for a mistrial.
[25,26] A mistrial is properly granted in a criminal case
where an event occurs during the course of a trial which is
of such a nature that its damaging effect cannot be removed
by proper admonition or instruction to the jury and thus pre-
vents a fair trial. State v. Green, 287 Neb. 212, 842 N.W.2d
74 (2014). A defendant faces a higher threshold than merely
showing a possibility of prejudice when attempting to prove
error predicated on the failure to grant a mistrial. State v.
Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013). Instead, the
defendant must prove the alleged error actually prejudiced
him or her, rather than creating only the possibility of preju-
dice. Id.When the State questioned Herfordt regarding what he
found in his search of the cell phone, Herfordt testified that the
background picture that came up on the screen when the cell
phone was turned on “was that of someone known to be Jimmy
Levering.” Henderson objected based on foundation, and the
court sustained the objection. The State then attempted to pro-
vide foundation by asking Herfordt how he knew the identity of
the person in the picture. Herfordt replied, “I worked Northeast
Omaha when I was in uniform, and Jimmy Levering, I guess,
was kind of an infamous gang member . . . .” Henderson imme-
diately moved for a mistrial based on Herfordt’s reference to
gang affiliations, noting that the State had agreed in connec-
tion with Henderson’s pretrial motion in limine that it would
not introduce evidence regarding gang affiliations. The court
overruled the motion for a mistrial. In challenging this ruling
on appeal, Henderson reasserts contentions he made at trial and
also offers some additional arguments.
Henderson contends that the reference to Levering as “an
infamous gang member” was a violation of the order on the
motion in limine precluding evidence of gang affiliation, that
the motion for a mistrial should have been granted, and that
the damaging effect could not be removed by admonition
to the jury. With regard to Henderson’s argument that the
damaging effect of the reference could not be removed by
Nebraska Advance Sheets
STATE v. HENDERSON 299
Cite as 289 Neb. 271admonition to the jury, the record shows that the court over-
ruled Henderson’s motion for a mistrial and the State resumed
questioning Herfordt. Henderson did not ask the court for
an admonition, and furthermore, the court asked Henderson
whether he was moving to strike Herfordt’s last answer, which
contained the gang reference to which Henderson replied, “Not
at this time, Judge, no.” We believe that any damage caused by
the lack of an admonition was the result of Henderson’s failure
to request such admonition.
It appears from the record that the State was not expect-
ing Herfordt to make the gang reference in his answer and
that the questioning by the State was not directed at eliciting
such response. The comment does not appear to be the result
of intentional misconduct by the prosecution. Upon resuming
questioning of Herfordt, the State cautioned Herfordt to avoid
testifying about his knowledge of any affiliations the person
in the picture may have had. Herfordt’s gang reference was
an isolated comment, the State did not present other evidence
of gang affiliations, and the State did not offer evidence that
Henderson had a gang affiliation.
We conclude that the court did not abuse its discretion when
it overruled the motion for a mistrial, and we reject this assign-
ment of error.
5. District Court Did Not Err When It
Overruled Henderson’s Motion to
Strike Herfordt’s Identification of
P erson in Cell Phone Picture
Henderson also claims that the district court erred when it
denied his motion to strike Herfordt’s testimony identifying
Levering as the person in the cell phone picture after Herfordt
admitted he had not personally met Levering. We find no merit
to this assignment of error.
After the court overruled the motion for a mistrial related
to Herfordt’s comment regarding gang affiliation as discussed
above, the State resumed questioning Herfordt to provide foun-
dation for his identification of the person in the picture found
on Henderson’s cell phone. Herfordt testified that he had not
personally had contact with the person in the picture but that
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300 289 NEBRASKA REPORTS
he had seen pictures of that person in connection with previ-
ous investigations and in news reports. Henderson renewed
his objection that the State had not provided foundation for
Herfordt’s identification of the person in the picture.
We note that two other witnesses—Narvaez and Perna—also
identified the person in the picture as Levering. Therefore,
whether or not there was sufficient foundation to admit
Herfordt’s testimony identifying the person in the picture,
even if it was error to admit such testimony, it was harmless
error because it was cumulative of other properly admitted
evidence. See State v. Taylor, 287 Neb. 386, 842 N.W.2d
771 (2014).
6. District Court Did Not Err When It
Overruled Henderson’s Motions to
Strike and for Mistrial R elated
to Narvaez’ Testimony
Finally, Henderson claims that the district court erred in
connection with its rulings regarding Narvaez’ testimony.
Specifically, the court overruled Henderson’s motion for a mis-
trial and his motion to strike Narvaez’ testimony. We reject this
assignment of error.
Narvaez, a correctional officer from a federal penitentiary
in Florida, testified regarding an altercation between an inmate
named “Jimmy Levering,” whom Narvaez identified as the
subject of the picture found on Henderson’s cell phone, and
another inmate he identified as “Voss.” Narvaez testified he did
not know the first name of the inmate he identified as “Voss.”
The court overruled Henderson’s motion for a mistrial and his
motion to strike related to this testimony.
Henderson argues that a mistrial should have been declared
or that Narvaez’ testimony should have been stricken because
Narvaez did not identify Voss, the murder victim in this case,
as the “Voss” who was involved in the altercation in Florida
and because there was no evidence other than Narvaez’ testi-
mony to establish that Levering was involved in the altercation.
Henderson argues that because of these failings, Narvaez’ testi-
mony was not relevant and was unfairly prejudicial.
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FEDERAL NAT. MORTGAGE ASSN. v. MARCUZZO 301
Cite as 289 Neb. 301Although Narvaez did not know the first name of the person
he identified as “Voss,” another witness, Perna, testified that he
had visited “Matthew Voss” in the prison in Florida, and Perna
identified the murder victim in this case as the “Voss” he vis-
ited in Florida. Perna also testified that Levering was discussed
during his conversation with “Voss” in Florida.
Narvaez’ testimony was relevant to the State’s case and
was not unfairly prejudicial. The strength of the evidence was
for the jury to assess. See State v. Matit, 288 Neb. 163, 846
N.W.2d 232 (2014) (appellate court does not pass on cred-
ibility of witnesses or reweigh evidence because such are mat-
ters for finder of fact). The court did not abuse its discretion
when it overruled Henderson’s motion for a mistrial and his
motion to strike Narvaez’ testimony. We reject this assignment
of error.
VI. CONCLUSION
Henderson makes numerous assignments of error pertaining
to pretrial and trial rulings, including the claim that the district
court erred when it did not suppress evidence obtained from
the search of his cell phone and admitted such evidence at
trial. For the reasons explained above, we find no error and we
affirm his convictions and sentences.
Affirmed.
Federal National Mortgage Association,
appellee, v. Brian S. M arcuzzo and
Donna M. Marcuzzo, appellants.
___ N.W.2d ___
Filed October 17, 2014. No. S-13-929.
1. Courts: Time: Appeal and Error. Where no timely statement of errors is filed
in an appeal from a county court to a district court, appellate review is limited to
plain error.
2. Jurisdiction: Appeal and Error. It is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of whether the
issue is raised by the parties.