State v. Williams

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/06/2018 12:11 AM CST
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. WILLIAMS
Cite as 26 Neb. Ct. App. 459
State of Nebraska, appellee, v.
A ndrew D. Williams, appellant.
___ N.W.2d ___
Filed October 30, 2018. No. A-17-877.
1. Criminal Law: Pretrial Procedure. Discovery in a criminal case is
generally controlled by either a statute or court rule.
2. ____: ____. Neb. Rev. Stat. §§ 29-1912 and 29-1913 (Reissue 2016) set
forth specific categories of information possessed by the State which are
discoverable by a defendant.
3. ____: ____. Neb. Rev. Stat. § 29-1916 (Reissue 2016) provides only
reciprocal discovery to the State as to orders for discovery entered pur-
suant to Neb. Rev. Stat. §§ 29-1912 and 29-1913 (Reissue 2016).
4. ____: ____. A motion for deposition is filed pursuant to Neb. Rev. Stat.
§ 29-1917 (Reissue 2016). However, unlike general discovery, a motion
for deposition can be filed by either party to a criminal case.
5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection.
6. Rules of Evidence: Hearsay: Proof. Hearsay is an out-of-court state-
ment made by a human declarant that is offered in evidence to prove the
truth of the matter asserted.
7. Rules of Evidence: Hearsay. Generally, hearsay is inadmissible except
as provided by a recognized exception to the rule against hearsay.
8. Trial: Evidence: Testimony: Proof. Demonstrative exhibits are admis-
sible if they supplement a witness’ spoken description of the transpired
event, clarify some issue in the case, and are more probative than
prejudicial.
9. Trial: Evidence. Demonstrative exhibits are inadmissible when they do
not illustrate or make clearer some issue in the case.
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STATE v. WILLIAMS
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10. Trial: Judges: Juries: Evidence. A trial judge may exercise his or her
broad discretion to allow or disallow the use of demonstrative exhibits
during jury deliberations.
11. Convictions: Evidence: Appeal and Error. Even if admitted in error,
where the evidence is cumulative and there is other competent evidence
to support the conviction, the improper admission or exclusion of evi-
dence is harmless beyond a reasonable doubt.
12. 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 determining admissibility.
13. 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.
14. Hearsay. If an out-of-court statement is not offered for the purpose of
proving the truth of the facts asserted, it is not hearsay.
15. Trial: Hearsay. A trial court should identify the specific nonhearsay
purpose for which the making of a statement is relevant and probative.
16. Trial: Appeal and Error. An error is harmless when cumulative of
other properly admitted evidence.
17. Trial: Jurors. Retention or rejection of a juror is a matter of discretion
with the trial court.
18. Trial: Motions to Dismiss: Jurors: Appeal and Error. The standard
of review in a case involving a motion to dismiss a juror is whether the
trial court abused its discretion.
19. Juror Qualifications. Through the use of peremptory challenges or
challenges for cause, parties can secure an impartial jury and avoid
including disqualified persons.
20. ____. Jurors who form or express opinions regarding an accused’s guilt
based on witness accounts of the crime must be excused for cause.
However, jurors whose source of information is from newspaper reports,
hearsay, or rumor can be retained if the court is satisfied that such
juror can render an impartial verdict based upon the law and the evi-
dence adduced.
21. Jurors: Appeal and Error. The erroneous overruling of a challenge
for cause will not warrant reversal unless it is shown on appeal that an
objectionable juror was forced upon the challenging party and sat upon
the jury after the party exhausted his or her peremptory challenges.
22. Motions to Strike: Jurors: Appeal and Error. Appellate courts ought
to defer to the trial court’s judgment on a motion to strike for cause,
because trial courts are in the best position to assess the venire’s
demeanor.
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STATE v. WILLIAMS
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23. Jurors: Proof: Appeal and Error. The complaining party must prove it
used all its peremptory challenges and would have used a challenge to
remove other biased jurors if not for the court’s error.
24. 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 histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
25. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a confes-
sion based on the claimed involuntariness of the statement, including
claims that it was procured in violation of the safeguards established
by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a
two-part standard of review. With regard to historical facts, an appellate
court reviews the trial court’s findings for clear error. Whether those
facts suffice to meet the constitutional standards, however, is a ques-
tion of law which an appellate court reviews independently of the trial
court’s determination.
26. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on
renewed objection, an appellate court considers all the evidence, both
from trial and from the hearings on the motion to suppress.
27. Motions to Suppress: Courts: Records. District courts shall articulate
in writing or from the bench their general findings when denying or
granting a motion to suppress.
28. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
protect individuals against unreasonable searches and seizures.
29. Arrests: Search and Seizure: Probable Cause. An arrest constitutes a
seizure that must be justified by probable cause to believe that a suspect
has committed or is committing a crime.
30. Criminal Law: Warrantless Searches: Probable Cause. Probable
cause to support a warrantless arrest exists only if law enforcement has
knowledge at the time of the arrest, based on information that is reason-
ably trustworthy under the circumstances, that would cause a reasonably
cautious person to believe that a suspect has committed or is commit-
ting a crime. Probable cause is a flexible, commonsense standard that
depends on the totality of the circumstances.
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31. Probable Cause: Appeal and Error. An appellate court determines
whether probable cause existed under an objective standard of reason-
ableness, given the known facts and circumstances.
32. Miranda Rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966), adopted a set of safeguards to protect suspects
during modern custodial interrogations.
33. Constitutional Law: Arrests: Miranda Rights: Words and Phrases.
A person is in custody for purposes of Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), when formally arrested or
otherwise restrained so as to be unable to move freely. It is undisputed
that a person who is handcuffed and placed in a police cruiser’s back
seat is in custody.
34. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
An interrogation includes express questioning, its functional equivalent,
and any police conduct that police officers ought to know is reasonably
likely to elicit incriminating responses. An arrestee’s voluntary state-
ments, which are not the product of interrogation, are not protected
under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
35. Miranda Rights: Self-Incrimination. When a custodial interrogation
occurs in the absence of Miranda-style procedural safeguards, an arrest-
ee’s self-incriminating statements are inadmissible in court.
36. Criminal Law: Confessions: Appeal and Error. In determining
whether the State has shown the admissibility of custodial statements by
the requisite degree of proof, an appellate court will accept the factual
determination and credibility choices made by the trial judge unless
they are clearly erroneous and, in doing so, will look to the totality of
the circumstances.
37. Trial: Evidence: Juries: Appeal and Error. Erroneous admission of
evidence is a harmless error and does not require reversal if the evidence
is cumulative and other relevant evidence, properly admitted, supports
the finding by the trier of fact. The proper inquiry is whether the trier of
fact’s verdict was certainly not attributable to the error.
38. Miranda Rights: Arrests: Self-Incrimination. Courts must consider
whether a Miranda warning, when given after an arrestee has already
made incriminating statements, is sufficient to advise and convey that
the arrestee may choose to stop talking even though he or she has spo-
ken before the warning was administered.
39. Miranda Rights. The threshold issue when interrogators question
first and warn later is thus whether it would be reasonable to find
that in these circumstances the warnings could function effectively as
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), requires.
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STATE v. WILLIAMS
Cite as 26 Neb. Ct. App. 459
40. Miranda Rights: Evidence. To determine whether a midinterrogation
Miranda warning is sufficient to warrant the admission of post-Miranda
statements, courts should consider five factors: the completeness and
detail of the questions and answers in the first round of interrogation,
the overlapping content of the two statements, the timing and setting of
the first and second, the continuity of police personnel, and the degree
to which the interrogator’s questions treated the second round as contin­
uous with the first.
41. Miranda Rights. In instances of midinterrogation Miranda warnings,
violations must include an inculpatory prewarning statement that some-
how overlaps with statements made in the postwarning interrogation.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Moore, Chief Judge, and Bishop and A rterburn, Judges.
A rterburn, Judge.
I. INTRODUCTION
Andrew D. Williams appeals from his convictions after a
jury trial in the district court for Douglas County of two counts
of driving under the influence causing serious bodily injury.
On appeal, he argues the court erred in rulings regarding evi-
dentiary issues, excusing a prospective juror for cause, and
denying pretrial motions to suppress. For the reasons set forth
below, we affirm.
II. BACKGROUND
1. Accident
On the evening of February 26, 2016, Williams’ pickup truck
collided with a car near the intersection of 52d and Parker
Streets in Omaha, Nebraska. Kyle Phillips, Erin Sorenson, and
Nathaniel Wissink were in the car when it was hit.
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Phillips, who testified that he drives through the area on
a near-daily basis, described 52d and Parker Streets as a
T-intersection in which a driver on Parker Street faces uphill.
From this perspective, a driver has a clear line of sight to
the right, or north, but when looking to the left, or south, on
52d Street, can see for only a block or block and a half as
a hill crests when 52d Street intersects near Decatur Street.
Accordingly, Phillips testified that oncoming cars traveling on
52d Street from the south would not be visible from the inter-
section in question until the hill’s crest.
On February 26, 2016, Phillips was accompanied by Wissink
in the front passenger seat and Sorenson in the rear passen-
ger seat as he drove westbound on Parker Street up the hill.
Phillips testified that it was dark at about 6:45 or 7 p.m. when
he stopped at the stop sign at the intersection of 52d and Parker
Streets. After seeing no cars approaching from the left or the
right, he pulled into the intersection and began to turn left
when his car was “struck just . . . so fast that there was no time
to comprehend anything” from the left while approximately
halfway in the intersection.
During trial, the State elicited testimony from a number of
neighbors who heard the accident and quickly arrived at the
scene. Andrew Hale was sitting in his home on 52d Street
and heard a vehicle approaching from the south at “what
[he] thought would be a high rate of speed.” The vehicle
accelerated without stopping, sounding as if “somebody had
pushed on the gas pedal.” Hale testified that the vehicle con-
tinued accelerating until he heard a crash a few seconds after
it passed his house. At no point did Hale hear the vehicle
brake. When Hale got outside and saw there had been a crash,
he called the 911 emergency dispatch service and spoke to
the dispatcher.
Brett Bailes, who lived at the corner of 52d and Parker
Streets, testified that he felt an explosion that shook his front
door and saw a fireball go up into the trees. He ran outside
and up to the car and immediately encountered Sorenson, who
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had come out of the car and was engulfed in flames. Bailes
took off his hooded sweatshirt, put it over her, and tackled
her to the ground in order to smother out the flames with
his body.
Bailes testified that once the flames engulfing Sorenson
were extinguished, he noticed that Sorenson’s face had sig-
nificant burns and that much of her hair was gone. He further
described that the jacket and jeans she was wearing appeared
to be “melted into her skin”: “You couldn’t tell where skin and
where clothing stopped and started.” Bailes next noticed that
Phillips, who was limply hanging out the car and beginning
to regain consciousness, was being helped out of the car by
another neighbor who lived on Parker Street and went outside
after hearing “a very large, loud sound, kind of indescribable,
extremely-violent-and-loud-explosion kind of a sound” and
seeing a vehicle in flames.
Sorenson indicated there had been three people in the car,
so Bailes and two neighbors ran back to the car that was com-
pletely engulfed in flames and found Wissink unconscious in
the front passenger seat. Bailes testified that the car was split
in half and appeared to be melting by that point; the front pas-
senger door was “creased in” and would not open.
The three neighbors attempted to extricate Wissink from the
car but struggled because his leg was pinned by the door and
dashboard. Bailes said the back of Wissink’s jeans were on fire
and were “melting to him” by that point. Eventually, Bailes
leaned in through the driver’s window and freed Wissink’s
leg, enabling his two neighbors to pull Wissink out the front
passenger window. Wissink remained unconscious when they
laid him in the yard beside Sorenson and Phillips. Paramedic
firefighters arrived shortly thereafter.
Bailes and one of the neighbors ran toward the pickup
truck, which was near 52d and Blondo Streets, to see if any-
one needed help. No one was in the pickup truck, however,
and Bailes said he saw no one around who may have been the
driver. Bailes testified that he observed “a plethora of beer cans
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of Bud Light cans and Budweiser cans all along the street.” He
never saw anyone associated with the pickup truck.
On cross-examination, Bailes said that “you can see [south]
one and a half or two blocks” from the intersection of 52d and
Parker Streets. He also estimated that there were probably 12
to 15 beer cans in the street.
Jason Orduna, a paramedic firefighter, testified that he rode
in the first vehicle out of the station, an ambulance, and that
he could see the fiery car from approximately six blocks
away. Various bystanders and neighbors had assembled by the
time he arrived at the scene and directed him to the victims
in the nearby yard. After speaking with Sorenson and briefly
examining her wounds and also conversing with Gregory
Hladik, another paramedic firefighter, Orduna determined that
Sorenson was the most critically wounded victim. Hladik also
testified that Sorenson was more severely injured than Phillips.
As Orduna treated Sorenson, Hladik treated Phillips. Together,
they transported Sorenson and Phillips via ambulance to a
medical center, arriving there at 7:41 p.m. Upon arrival at the
medical center, Orduna and Hladik transferred care to the
medical center personnel.
Omaha Police Department officers, Mark Blice and Grant
Gentile, were dispatched to the scene as well. They first
observed a pickup truck on its side about a block away from a
car that was engulfed in flames and virtually split in half. They
also observed several unopened beer cans and ice in the road
along with coolers in the back of the pickup truck. After ensur-
ing no occupants remained in either vehicle, Blice and Gentile
began separately speaking with potential witnesses who had
gathered near the scene.
Witnesses told Blice that they observed the pickup truck
driver exit his vehicle and walk away. They described the
pickup truck driver as a white man who had short hair and
wore blue jeans. As Blice continued speaking with witnesses,
they identified a man walking around behind him as the pickup
truck driver. That man was thereafter identified as Williams.
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STATE v. WILLIAMS
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Blice made contact with Williams and observed that he
appeared disoriented, smelled of alcohol, and exhibited slurred
speech and watery eyes. When Blice asked Williams if he
was the pickup truck driver, Williams confirmed that he was.
Williams also matched the physical description given by wit-
nesses. Blice then handcuffed Williams and placed him in the
back seat of his police cruiser.
Without first administering a Miranda warning, Blice pro-
ceeded to briefly question Williams. In particular, Blice asked
Williams what had happened, where he was going, and what
he was doing when the accident occurred. Williams answered
that he was traveling northbound on 52d Street when someone
pulled out in front of him. Williams told Blice that he was
unable to stop before hitting the car, and he acknowledged that
he was traveling too fast.
Contemporaneous with Blice’s speaking to witnesses and
locating Williams, Gentile spoke with the victims who were
being treated in a nearby yard prior to transport. Later medi-
cal examinations and treatment showed that Sorenson suffered
second degree burns to her face and hands, a lung contusion,
a small collapse of her lung, multiple broken ribs, and a rup-
tured spleen. Phillips sustained a cervical spine fracture near
his lower neck or upper back. Meanwhile, Wissink suffered a
concussion and a “bone dent” to his right femur.
After speaking with the three victims, Gentile approached
Williams, who was at that time handcuffed and seated in the
back of the police cruiser. Gentile asked Williams whether
he was injured or needed medical attention, which Williams
declined. During their conversation, Gentile noticed the strong
odor of alcoholic beverage on Williams’ person and further
observed that his speech was thick and slurred.
2. Jail Transport
Blice and Gentile transported Williams to the police station.
While transporting Williams, Blice asked him for the informa-
tion of an emergency contact person as was Blice’s routine
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procedure while transporting someone. Williams provided the
name and telephone number of his wife. Records show that
Williams entered the police station at approximately 8:15 p.m.
on February 26, 2016. Upon arrival, Blice and Gentile took
Williams into a room designated for breath testing and read
him a “Post Arrest Chemical Test Advisement,” which advised
Williams he had been arrested for driving under the influence
and requested that he submit to a breath test. Blice also began
observing Williams as part of the test and readied paper-
work, including a driving under the influence supplementary
report and field notes, which includes a Miranda rights advi-
sory. Williams agreed to answer questions after being read
the advisory.
Blice asked Williams whether he was driving, had been
drinking earlier, and felt his drinking impaired his driving.
Williams responded affirmatively to each question. When Blice
asked Williams what signs of intoxication he thought he pre-
sented, Williams responded, “too many beers.” Blice then
asked about where Williams was going (“home”) and from
where he was coming (“work”). Williams articulated an under-
standing of where he was traveling and knew roughly what
time it was.
Upon being asked, Williams acknowledged he had six
beers at work from around 3 to 6:45 p.m. Williams again
confirmed he was not injured. Blice ended the interview
around 8:39 p.m. by asking whether there was anything else
Williams would like documented. Williams said he noticed
beer cans on the street and wanted it documented that those
did not belong to him. Thereafter, Williams was administered
a breath test via a DataMaster machine and registered a score
of .134.
Blice testified that he continued noticing signs of Williams’
intoxication throughout the time he transported him to the
police station and interviewed him. In particular, Williams’
“thick speech” and watery eyes persisted, as did the odor of
alcoholic beverage. Based on his observations throughout the
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day, Blice opined that Williams was under the influence of
alcohol to an extent that it impaired his driving.
On cross-examination, Blice acknowledged that Williams
did not exhibit many other factors indicating intoxication.
Williams was not unsteady or swaying while he walked. He
was cooperative in answering questions and respectful toward
officers. Blice also acknowledged that he did not perform stan-
dard field sobriety tests on Williams. This was due, in part, to
Blice’s concern that the results might be affected by any inju-
ries Williams sustained in the accident.
While at the police station, Williams made eight separate
telephone calls, all to the same telephone number, which was
later identified as belonging to his wife. Not all of the calls
were completed or lasted very long, however. The telephone
call system begins with an automated voice that advises the
call is subject to being monitored and recorded. Williams’
first call occurred around 11:30 p.m. During the calls, the
couple discussed the accident in general terms, his intoxication
level, the charges, the victims’ conditions, bond, and whether
he would be in jail over the weekend. Williams also told his
wife he had been driving over the speed limit and was driv-
ing recklessly.
3. Pretrial
Williams was charged with two counts of driving under the
influence causing serious bodily injury, each being a Class
IIIA felony. Williams entered pleas of not guilty.
Before this matter proceeded to trial, Williams filed a series
of motions to suppress. In his first two motions, Williams
alleged that officers collected evidence from him following
his arrest made without a warrant and without probable cause,
thus violating his constitutional protections under the Fourth
Amendment. He also alleged that any statements taken from
him should be suppressed as a product of an illegal arrest
and because he did not knowingly and intelligently waive his
Miranda rights.
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The court received testimony from Blice and Gentile and a
Douglas County “911 audio tech.” The court denied Williams’
motion to suppress by an order dated November 1, 2016, find-
ing the officers’ actions did not violate Williams’ constitutional
rights. The court found the officers had probable cause to
arrest Williams and “take the actions they did” thereafter.
On May 25, 2017, Williams filed a “Motion in Limine/
Motion to Suppress” results of the breath test administered
upon his arrest. On the same date, he filed a motion in limine
to prevent the State from making any mention of (1) state-
ments he made at the jail and (2) a written report which stated
that the DataMaster machine was in proper working order
at the time he was tested. The State filed a motion in limine
seeking to prohibit Williams from calling an identified expert
witness to testify. The court heard these motions on June 9
and denied Williams’ motions by orders filed June 13. As
to the State’s motion, the district court required Williams to
make disclosures to the State regarding Robert Belloto, Jr.,
an expert witness who would testify regarding issues with the
DataMaster machine.
4. Trial
This matter then proceeded to a jury trial, which was held
June 19 through 23, 2017. During trial, the State called 23
witnesses, which included Blice and Gentile, other emergency
responders, other law enforcement personnel, the jail’s tele-
phone system administrator, an accident reconstructionist, the
three victims, the victims’ treating physicians, and various
neighbors and bystanders from the accident scene. Williams
called one witness, Belloto.
During trial, Blice and Gentile described their observations
of the accident scene and Williams, and they detailed their con-
versations and questioning of Williams. Emergency responders
and other law enforcement personnel likewise described the
accident scene, and paramedic firefighters discussed the vic-
tims’ injuries. The victims’ treating physicians further detailed
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the victims’ particular injuries. Other law enforcement person-
nel and the jail’s telephone system administrator described
their observations of Williams while he was at the police sta-
tion, which aligned with Blice’s and Gentile’s descriptions.
The State’s accident reconstruction expert was Richard Ruth,
who specialized in the use of “automobile event data record-
ers” to understand the manner in which a vehicle operated just
before a crash. Ruth testified regarding the information that is
captured by an “air bag control module” and an “event data
recorder,” and he also performed calculations of speed based
on “inline momentum analysis” and “postcrash travel.” In par-
ticular, he analyzed the data provided by the data recorder from
Williams’ pickup truck.
Based on all of the information available to him, Ruth testi-
fied that Williams was traveling between 63.1 and 78.6 miles
per hour at the time of impact. The data recorder revealed that
the accelerator of the pickup truck was depressed almost to the
maximum until 2.4 seconds prior to impact. Williams’ accel-
erator pedal was released, and the brake applied between 2.4
and 1.4 seconds before impact. Ruth estimated that the pickup
truck would have slowed down by approximately 18 miles
per hour between the application of the brakes and impact.
Williams’ pickup truck traveled for 246 feet after the crash
impact. A number of Ruth’s calculations and summaries were
received, including exhibits 139 through 141, 143 through 147,
and 150.
Later, during Williams’ case in chief, he called Belloto,
a pharmacist who has expertise related to the DataMaster
machine. Belloto reviewed records and repair reports related
to the DataMaster machine used to test Williams’ breath. He
said that multiple breath tests ought to be administered to the
same person in order to avoid false positives caused by gastric
reflux, breath spray that contains alcohol, radio interference, or
the machine beginning to fail.
Belloto testified about his concerns with the DataMaster
machine used to test Williams because there was no indication
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that Williams’ test was “bookend[ed]” by tests of known
substances that would show the machine was still working
properly. Moreover, Belloto was concerned with the machine’s
multiple repairs and eventual replacement. Belloto was further
concerned that Williams’ blow was unusually long at 50 sec-
onds because longer blows into the machine cause a “spike”
and registers higher scores. During cross-examination, how-
ever, Belloto acknowledged that Williams’ breath test result
was a .12 after 15 seconds of blowing and only increased to
.134 by the end of his 50-second blow.
Following Belloto’s testimony, Williams rested, and the
State offered no rebuttal evidence. The jury thereafter returned
guilty verdicts on both counts of driving under the influence
causing serious bodily injury. Williams was sentenced to 3
years’ imprisonment on count 1 and 2 years’ imprisonment on
count 2. Additionally, Williams was sentenced to 9 months’
postrelease supervision with regard to each conviction, and
Williams’ driver’s license was revoked for 3 years with regard
to each conviction. The sentences were ordered to run consecu-
tive to each other.
Williams appeals.
III. ASSIGNMENTS OF ERROR
Williams assigns, restated and renumbered, that the dis-
trict court erred in (1) ordering him to disclose the opinions,
facts, and data of Belloto, an expert witness; (2) admitting
the opinions and summaries of a State’s expert over objec-
tion; (3) admitting jailhouse telephone calls over objection;
(4) not striking a prospective juror for cause; and (5) denying
his motions to suppress his arrest and the statements he gave
before and after receiving a Miranda warning.
IV. ANALYSIS
1. Disclosure of Expert Opinion
Williams first assigns that the district court erred by sus-
taining in part a motion in limine filed by the State seeking
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STATE v. WILLIAMS
Cite as 26 Neb. Ct. App. 459
to preclude Williams from calling Belloto as a witness. At
the hearing on the motion, the prosecutor alleged that shortly
before the scheduled trial, he was provided a copy of Belloto’s
resume by defense counsel. The prosecutor then contacted
one of Williams’ attorneys and asked whether Belloto would
testify and if so, whether a report of his opinions would be
forthcoming. According to the prosecutor, he was told that
no report existed to date. As such, the motion was filed seek-
ing an order that would preclude Belloto from testifying or,
in the alternative, require Williams to disclose the underlying
facts and data supporting any opinions he might give. The
district court sustained the motion in part, requiring Williams
to either provide the State a copy of any report prepared by
Belloto, make Belloto available for inquiry or deposition, or
provide a written narrative report that contained a complete
explanation of Belloto’s substantive testimony. On June 15,
2017, defense counsel provided the State a one-paragraph letter
which identified the topics that Belloto would testify about and
the materials upon which his testimony would be based. The
letter does not provide any information on what opinions or
conclusions Belloto would include in his testimony. The State
argues the court did not err in requiring Williams to provide the
ordered information regarding Belloto’s expected testimony.
Alternatively, the State argues that if the district court erred in
its requirements, such error was harmless. Finding no error by
the district court, we affirm.
[1,2] Discovery in a criminal case is generally controlled
by either a statute or court rule. State v. Henderson, 289 Neb.
271, 854 N.W.2d 616 (2014). Neb. Rev. Stat. §§ 29-1912 and
29-1913 (Reissue 2016) set forth specific categories of infor-
mation possessed by the State which are discoverable by a
defendant. Neb. Rev. Stat. § 29-1916 (Reissue 2016) provides
in part:
(1) Whenever the court issues an order pursuant to the
provisions of sections 29-1912 and 29-1913, the court
may condition its order by requiring the defendant to
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grant the prosecution like access to comparable items
or information included within the defendant’s request
which:
(a) Are in the possession, custody, or control of the
defendant;
(b) The defendant intends to produce at the trial; and
(c) Are material to the preparation of the prosecu-
tion’s case.
Williams argues that since he did not request the names of
the State’s witnesses in his motion for discovery, he was not
obligated to disclose any names of witnesses he planned to
call. His argument is largely founded on the case of State v.
Woods, 255 Neb. 755, 587 N.W.2d 122 (1998). In Woods, the
Supreme Court affirmed as modified the Nebraska Court of
Appeals’ reversal of a conviction wherein the trial court had
required the defendant to disclose the names of alibi witnesses
prior to trial. See State v. Woods, 6 Neb. Ct. App. 829, 577 N.W.2d
564 (1998). The Supreme Court noted that the defendant did
not seek the names of the State’s witnesses in the defendant’s
discovery requests. As such, the court found that the reciprocal
discovery provisions of § 29-1916 provided no basis for the
trial court’s order that the defendant be required to disclose
his witnesses.
In this case, the district court rejected Williams’ argument.
In its decision, the district court first noted that in Williams’
motion for depositions, he requested “an extensive amount
of information pertaining to possible witnesses of the State.”
While that motion is not in our record, the district court quoted
a paragraph of the motion as stating, “‘Evidence which is
highly complex, such as intricate mechanical or chemical evi-
dence or prospective testimony from an expert witness, when
such evidence would be better understood, or eventually rebut-
ted, by availability of information before trial . . . .’” The court
then noted that this motion for depositions was granted. The
district court further noted that in its prior order as to Williams’
discovery motion pursuant to § 29-1912, reciprocal discovery
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was ordered. The district court then concluded that the State’s
request was essentially identical to Williams’ request made
in his motion for depositions. As such, reciprocal discov-
ery as previously ordered required Williams to grant like
access to his expert as was previously given to him as to the
State’s witnesses.
[3,4] While our rationale differs from that of the district
court, we agree with its ultimate decision. By its terms,
§ 29-1916 provides only reciprocal discovery to the State as
to orders for discovery entered pursuant to §§ 29-1912 and
29-1913. A motion for deposition is filed pursuant to Neb.
Rev. Stat. § 29-1917 (Reissue 2016). However, unlike general
discovery, a motion for deposition can be filed by either party
to a criminal case. The State’s ability to take the deposition of
a defense witness is not dependent on the defense first taking
depositions of prosecution witnesses. We note that Williams
motion for depositions is not in our record. Therefore, it is
difficult to discern whether the motion somehow goes beyond
the parameters of § 29-1917 and is in essence a request for
the identification of witnesses which would place it under
§ 29-1912 as apparently found by the district court.
What is clear is that this is not a case where defense counsel
had not identified their expert witness to the State. According
to the motion, counsel for Williams provided the State with
Belloto’s resume on May 31, 2017. Therefore, unlike the sce-
nario in State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998),
this is not a case where the State was seeking to force Williams
to divulge the name of a witness. Rather, the State was trying
to find out what it is that the identified witness would testify
about. In his motion for discovery, Williams requested:
(e) The results and reports of physical or mental
examinations, and scientific tests, or experiments made
in connection with this particular case, or copies thereof;
[and]
(f) Documents, papers, books, accounts, letters, pho-
tographs, objects, or other tangible things of whatsoever
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kind or nature which could be used as evidence by the
prosecuting authority.
These requests are quite broad, and reciprocal discovery was
granted to the State as to each of them.
Belloto’s resume reveals that he holds several graduate
degrees, including a Ph.D. in pharmacy. He also holds certi-
fications with respect to several instruments used to measure
alcohol in the breath, including the DataMaster machine—
the instrument used in this case—and had made numerous
presentations to attorney groups regarding alcohol and drug
testing as it relates to driving under the influence cases. As
such, we cannot find error in the district court’s conclusion
that Williams should provide any report generated by his
expert that is in defense counsel’s possession as that report
would clearly fall within the parameters of Williams’ discov-
ery requests. Therefore, Williams had the affirmative obliga-
tion to turn over any such report pursuant to the prior order of
the district court requiring him to provide reciprocal discovery
to the State.
In addition, the district court did not err by giving the State
the option to depose Belloto. The State’s motion in limine
sought disclosure of Belloto’s opinions and the data upon
which they were based. Under § 29-1917, the court may order
the taking of a deposition when it finds the testimony of the
witness may be material or relevant to the issue to be deter-
mined at the trial of the offense or may be of assistance to
the parties in the preparation of their respective cases. Here,
both justifications exist. While we recognize that the State’s
motion in limine in this case did not specifically seek to depose
Belloto, it did seek information as to his opinions and the basis
for those opinions. Consequently, there was no error in giv-
ing the State the ability to depose a witness already disclosed
to them.
Finally, we note that even if the district court’s order was
considered to be error, such error was harmless. The record
reveals that no report authored by Belloto existed or was
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produced. No deposition or interview of Belloto took place.
Rather, defense counsel provided a one-paragraph letter to the
prosecutor which identified the topics about which Belloto
would testify and the underlying materials upon which he
would rely 4 days prior to trial. This disclosure falls far
short of the “complete explanation of the subject matter
upon which his expert will testify” ordered by the court. The
substance of the disclosure tells the prosecutor that Belloto
“will discuss the reliability of the DataMaster” and “the
problems with the test” conducted. This information provides
little more than could be surmised by a perusal of Belloto’s
resume, which Williams had voluntarily disclosed. Moreover,
the materials identified upon which Belloto would opine
were materials previously provided to defense counsel by
the State. The State called as witnesses two technicians, one
who administered the breath test and one who maintained the
breath testing equipment. While testimony was adduced from
these witnesses as to whether the equipment was functioning
properly so as to receive an accurate result, no expert was
called either during the State’s case in chief or in rebuttal
to specifically rebut the testimony of Belloto. As such, we
cannot see how Williams’ case was harmed. Accordingly,
we find that even if we were to find that the court erred
in requiring disclosure of Belloto’s expected testimony,
such requirement would be harmless error given the record
before us.
2. A dmission of Expert Calculations
and Summaries
(a) Standard of Review
[5] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection. State v. Schwaderer, 296 Neb. 932, 898
N.W.2d 318 (2017).
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(b) Analysis
Williams next contends the district court erred in improperly
admitting hearsay evidence in the form of Ruth’s expert calcu-
lations and summaries, namely exhibits 139 through 141, 143
through 147, and 150, over objection during trial. In response,
the State argues that Ruth’s calculations and summaries were
not hearsay evidence because they did not contain Ruth’s
opinions but only demonstrated the data and calculations upon
which his opinions were based. Alternatively, the State argues
such admission was harmless error.
[6,7] Hearsay is an out-of-court statement made by a human
declarant that is offered in evidence to prove the truth of the
matter asserted. See Neb. Rev. Stat. § 27-801 (Reissue 2016).
See, also, State v. Baker, 280 Neb. 752, 789 N.W.2d 702
(2010). Generally, hearsay is inadmissible except as provided
by a recognized exception to the rule against hearsay. See Neb.
Rev. Stat. §§ 27-802 through 27-804 (Reissue 2016).
Williams claims that the exhibits received all constituted
hearsay. Williams relies on the case of State v. Whitlock,
262 Neb. 615, 634 N.W.2d 480 (2001). Whitlock involved a
condemnation action brought by the State. At trial, the court
received the full appraisal report and supplemental report of
the defendant’s appraiser and allowed the reports to go to
the jury during deliberations. The Nebraska Supreme Court
reversed the judgment and remanded the cause for a new trial,
finding that allowing the reports to go to the jury “essentially
amounted to a continued and more thorough testimony of his
opinion during jury deliberations, without the benefit of cross-
examination.” Id. at 620, 634 N.W.2d at 484. The court noted
that the expert’s testimony on certain aspects of the appraisal
were “superficial at best.” Id. at 619, 634 N.W.2d at 484. The
report was much more detailed than the testimony and con-
tained photographs and maps for which no foundation was
laid. As such, the court found that the report constituted inad-
missible hearsay and should not have been provided to the jury.
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In the instant case, Williams specifically complains of the
admission of nine exhibits. Exhibits 139 and 140 are graphs
taken from the crash data retrieval report that show the pickup
truck’s speed, brake activation, accelerator rate, “[e]ngine
RPM,” and precrash data status during the 4.4 seconds lead-
ing to impact. This graph is included in exhibits 137 and 138,
which were received without objection. However, on exhibits
139 and 140, Ruth replaced the information found in some
boxes of the graph with “RPM” data which tells him that the
speed was higher and the pickup truck was accelerating during
the first few seconds measured then slowed in the last 2 sec-
onds. In his testimony, he explained that the recorder will only
record a maximum speed of 78.3 miles per hour regardless of
how fast the vehicle was traveling. Therefore, his testimony
regarding acceleration and deceleration was noted into exhibits
139 and 140. Exhibits 141 and 143 through 147 all display
speed calculations primarily at impact according to the various
methods of calculation that he could perform based on the data
retrieved from the pickup truck and the measurements taken
at the crash scene. Exhibit 150 depicts the “EDR” data on a
“Google Earth” photograph of the crash site.
For the most part, the exhibits display the data Ruth uti-
lized to make his computations, the formulas used to compute
the pickup truck’s speed using three different sets of data,
and then the resulting estimate of speed. His ultimate range
of speed results from a combination of the three separate
computations made and is recorded on exhibit 145. The tes-
timony fully explained the information listed on the exhibits.
Therefore, unlike the reports received in State v. Whitlock,
supra, nothing exists in the exhibits herein that was not fully
discussed in Ruth’s testimony. While there is some level of
opinion evidence embedded in the exhibits, they primarily
serve as aids which demonstrate how Ruth reached his ulti-
mate conclusion, and in the case of exhibit 150, they illustrate
the distance traveled by Williams’ pickup truck in the seconds
leading up to the crash. Therefore, we view the exhibits as
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being more akin to test results that display the raw data and
then show the methodology utilized to generate a result.
As such, the vast majority of the information contained in
the exhibits—the raw data and formulas—were not offered
for the truth of the matter asserted but were offered for the
purpose of demonstrating the information and analysis used by
Ruth in reaching his conclusions. Accordingly, those portions
of the exhibits are not hearsay.
[8,9] To the extent that some level of opinion exists in
the exhibits, we find that those opinions were admissible as
demonstrative evidence. Demonstrative exhibits are admissible
if they supplement a witness’ spoken description of the trans-
pired event, clarify some issue in the case, and are more proba-
tive than prejudicial. State v. Daly, 278 Neb. 903, 775 N.W.2d
47 (2009) (affirming admissibility of PowerPoint presentation
that included several diagrams, photographs, and videos illus-
trating medical terms and concepts). Demonstrative exhibits
are inadmissible when they do not illustrate or make clearer
some issue in the case. Id. In this case, we find that the exhibits
in question were supplemental to Ruth’s spoken description of
the transpired event, clarified an important issue in the case,
and were more probative than prejudicial. We again note that
no conclusion exists in the exhibits that was not fully explained
in the testimony.
[10,11] We are mindful however that demonstrative exhibits
are not automatically sent to the jury room to be utilized in
deliberations. However, a trial judge may exercise his or her
broad discretion to allow or disallow the use of demonstrative
exhibits during jury deliberations. State v. Pangborn, 286 Neb.
363, 836 N.W.2d 790 (2013). Here, the exhibits in question
were received without qualification. Therefore, no limiting
instruction was given to the jury as to how the exhibits should
be considered. While the cautious approach at trial may have
been to receive the exhibits at least in part on a demonstra-
tive basis only and give a limiting instruction, we find that
no harm resulted from the district court’s approach. As stated,
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the majority of the information in the exhibits was not hear-
say. Any opinion evidence was cumulative to the testimony.
Moreover, there was significant further evidence adduced dur-
ing the course of trial which established that Williams was
traveling at a high rate of speed at the time of the impact. Even
if admitted in error, where the evidence is cumulative and
there is other competent evidence to support the conviction,
the improper admission or exclusion of evidence is harmless
beyond a reasonable doubt. See State v. Rieger, 260 Neb. 519,
618 N.W.2d 619 (2000). As such, we find that Williams suf-
fered no prejudice as a result of the admission of exhibits 139
through 141, 143 through 147, and 150.
3. A dmission of Jailhouse
Telephone Call
(a) Standard of Review
[12,13] 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. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appel-
late court reviews the admissibility of evidence for an abuse of
discretion. Id.
(b) Analysis
Williams assigns the district court erred by admitting the
entirety of a recorded telephone call he made to his wife from
jail on the night of the accident over his objection. Williams
contends specific portions of this call relating to the results
of his breath test and the victims’ injuries constitute inadmis-
sible hearsay. In contrast, the State argues the complained
of portions of the call were admissible nonhearsay evidence
because they were not offered for their truth or, alternatively,
their admission constitutes harmless error because they were
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cumulative of other properly admitted testimony. We agree
with the State’s position.
[14,15] If an out-of-court statement is not offered for the
purpose of proving the truth of the facts asserted, it is not hear-
say. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010). See
§ 27-801(3). A trial court should identify the specific nonhear-
say purpose for which the making of a statement is relevant
and probative. State v. Baker, supra.
In this matter, Williams complains of a handful of state-
ments contained within a recorded telephone call that lasted
101⁄2 minutes. First, Williams’ statements regarding the results
of his breath test, which were prompted by his wife’s question,
were not offered by the State for their truth because they were
not accurate. On the recorded call, Williams references breath
test scores of 1.2 and 1.4. The technician who administered
Williams’ breath test testified that Williams’ test result was
actually .134. Accordingly, Williams’ telephonic statements
regarding his breath test score were admissible nonhearsay
evidence. Additionally, Williams’ telephonic statements regard-
ing the victims’ injuries were also not offered for their truth,
because Williams knew little about the particularities of the
injuries and expressed uncertainty regarding the victims’ con-
ditions. Because the complained-of statements on the recorded
call were not offered for the truth of the matter asserted, their
admission was proper.
[16] Even assuming Williams’ complained-of statements
were improperly admitted, we determine any error was harm-
less as ample evidence was adduced regarding the subject
matter of those statements from other sources. Thus, an error
is harmless when cumulative of other properly admitted evi-
dence. In particular, Williams’ statements on the telephone
regarding the results of his breath test were cumulative of the
testimony of the technician who administered Williams’ breath
test. That technician testified that Williams’ test result was .134
of a gram of alcohol per 210 liters of breath, which comports
with exhibit 105, a copy of the Omaha Police Department’s
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“INFRARED ABSORPTION Checklist Technique” that the
technician who administered Williams’ breath test completed
on the night in question.
Williams’ statements on the telephone regarding the victims’
injuries were also cumulative as multiple witnesses testified to
the nature of the victims’ injuries. Most notably, Sorenson’s
treating physician testified that Sorenson had burns to her face
and hands and a ruptured spleen due to the accident. Sorenson
also testified that she sustained injuries to her spleen and burns
to her face and hands. Additionally, Gentile testified to seeing
the three victims’ injuries when he first arrived at the scene.
Accordingly, even if admission of the complained-of state-
ments constituted error, no harm resulted to Williams.
4. Striking Juror for Cause
(a) Standard of Review
[17,18] Retention or rejection of a juror is a matter of dis-
cretion with the trial court. State v. Krutilek, 254 Neb. 11, 573
N.W.2d 771 (1998). Thus, the standard of review in a case
involving a motion to dismiss a juror is whether the trial court
abused its discretion. Id.
(b) Analysis
Williams contends that a prospective juror ought to have
been stricken for cause due to his familiarity with this case’s
underlying facts. Accordingly, Williams argues the district
court erred in denying his motion to strike that prospective
juror. The State argues that the prospective juror in question
was not biased by his knowledge of the case, meaning there
was no ground to remove him for cause. Additionally, the State
argues that Williams was not prejudiced because the objection-
able prospective juror did not actually sit on the jury. We find
that the district court did not abuse its discretion by overruling
Williams’ motion to strike the juror for cause.
[19,20] Through the use of peremptory challenges or chal-
lenges for cause, parties can secure an impartial jury and avoid
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including disqualified persons. See State v. Quintana, 261 Neb.
38, 621 N.W.2d 121 (2001), modified on denial of rehearing
261 Neb. 623, 633 N.W.2d 890. The retention or rejection of a
juror is a matter of discretion for the trial court. State v. Huff,
298 Neb. 522, 905 N.W.2d 59 (2017). Jurors who form or
express opinions regarding an accused’s guilt based on witness
accounts of the crime must be excused for cause. See, Neb.
Rev. Stat. § 29-2006 (Supp. 2017); State v. Galindo, 278 Neb.
599, 774 N.W.2d 190 (2009). However, jurors whose source of
information is from newspaper reports, hearsay, or rumor can
be retained if the court is satisfied that such juror can render an
impartial verdict based upon the law and the evidence adduced.
See, § 29-2006; State v. Galindo, supra.
[21-23] Even the erroneous overruling of a challenge for
cause will not warrant reversal unless it is shown on appeal
that an objectionable juror was forced upon the challenging
party and sat upon the jury after the party exhausted his or
her peremptory challenges. State v. Galindo, supra. Appellate
courts ought to defer to the trial court’s judgment on a motion
to strike for cause, because trial courts are in the best position
to assess the venire’s demeanor. See id. Notably, the court in
State v. Galindo, supra, only considered arguments regarding
2 of the 19 potential jurors who the defendant claimed ought
to have been stricken for cause because only those 2 potential
jurors actually ended up seated on the jury. The complaining
party must prove it used all its peremptory challenges and
would have used a challenge to remove other biased jurors if
not for the court’s error. See State v. Rodriguez, 272 Neb. 930,
726 N.W.2d 157 (2007).
In the present matter, during the State’s voir dire, the pro-
spective juror at issue stated that he was familiar with the facts
of this case. The prospective juror also stated he had served
on a civil jury some time ago and had practiced law for many
years, trying mostly civil cases and one shoplifting case in
which he served as defense counsel.
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In chambers, and with counsel and Williams present, the
prospective juror in question recounted the particular facts of
this matter that he remembered, stating he “followed it pretty
closely.” For example, the prospective juror recalled the area
of the accident, basic descriptions of the parties involved, and
basic facts of the accident. Upon questioning, he confirmed
he was “going off [his] memory of some news reports” that
he read or watched at the time. When asked by the State’s
attorney, the prospective juror confirmed he would follow the
court’s instructions and make a decision based only on the evi-
dence presented in court.
Williams’ counsel then questioned the prospective juror, who
acknowledged discussing the accident with other people when
it happened and stated that “it sounded pretty nasty” but denied
having already made up his mind. Upon further questioning by
Williams’ counsel, the prospective juror agreed that separating
what he already knew from the evidence was possibly diffi-
cult and expanded by saying, “I don’t think that anybody can
­separate their life’s experience from — from what they hear.
You are going to have some opinions you come in with.”
After Williams moved to strike this prospective juror for
cause, the court inquired further, revealing that the prospec-
tive juror had practiced law for some 25 years. The court also
noted that no jurors have “100 percent clean minds” and sought
to determine whether the prospective juror would deliberate
and decide the matter based solely on the evidence presented
in court. The prospective juror stated, “Based upon my years
practicing law, I would hope that all my jurors would look
at the evidence and not anything else, and I would do my
darnedest to do the same thing.” Satisfied, the court overruled
Williams’ motion to strike the prospective juror for cause. The
prospective juror in question was subsequently excused at the
conclusion of the jury selection process after the parties exer-
cised their peremptory strikes.
We find no abuse of discretion by the district court.
Although additional questions could have been asked, we are
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satisfied that the prospective juror’s answers showed a clear
intent and capability to be an impartial juror in this mat-
ter. After practicing law for some 25 years, the prospective
juror’s statements show that he recognized the practical reality
that no person enters the jury box devoid of personal experi-
ences. Even though the prospective juror’s experiences hap-
pened to include reading publications about the accident for
which Williams was charged, the prospective juror repeatedly
stated his intent to consider only the evidence offered in the
courtroom. It is also clear that the prospective juror intended
to conduct himself as he expected all jurors would, judging
Williams solely on the evidence offered in court and noth-
ing else. As such, particularly given our standard of review
and recognizing that the district court had the opportunity to
observe the prospective juror’s demeanor and the manner in
which he answered questions, we find the court did not err
in overruling Williams’ motion to strike the prospective juror
in question.
5. Motions to Suppress
(a) Standard of Review
[24] 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. State
v. Petsch, 300 Neb. 401, 914 N.W.2d 448 (2018); State v. Botts,
299 Neb. 806, 910 N.W.2d 779 (2018). Regarding historical
facts, an appellate court reviews the trial court’s findings for
clear error, but whether those facts trigger or violate Fourth
Amendment protection is a question of law that an appellate
court reviews independently of the trial court’s determination.
State v. Petsch, supra; State v. Botts, supra.
[25] In reviewing a motion to suppress a confession based
on the claimed involuntariness of the statement, including
claims that it was procured in violation of the safeguards estab-
lished by the U.S. Supreme Court in Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we apply a
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two-part standard of review. State v. Rogers, 277 Neb. 37, 760
N.W.2d 35 (2009). With regard to historical facts, we review
the trial court’s findings for clear error. Id. Whether those facts
suffice to meet the constitutional standards, however, is a ques-
tion of law which we review independently of the trial court’s
determination. Id.
[26] When a motion to suppress is denied pretrial and again
during trial on renewed objection, an appellate court considers
all the evidence, both from trial and from the hearings on the
motion to suppress. State v. Rogers, 297 Neb. 265, 899 N.W.2d
626 (2017).
(b) Arrest of Williams
[27] Before engaging in our analysis of the issues pre-
sented regarding Williams’ motions to suppress, we must
pause to note that our analysis is hampered by the brevity and
absence of more particularized findings made by the district
court in its order overruling Williams’ motion. “[D]istrict
courts shall articulate in writing or from the bench their gen-
eral findings when denying or granting a motion to suppress.”
State v. Osborn, 250 Neb. 57, 67, 547 N.W.2d 139, 145
(1996). While the degree of specificity can vary from case to
case and while some very brief general findings were made in
this case, to the degree the district court can be more specific
in its findings, our review of its ultimate disposition of the
motion is aided.
Williams contends the court erred in denying his motion to
suppress evidence arising from his arrest because the arrest
was not supported by probable cause. In response, the State
argues there was probable cause that Williams committed
multiple crimes, which was sufficient to support Williams’
arrest.
[28-31] The Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution protect individ-
uals against unreasonable searches and seizures by the state.
State v. Pester, 294 Neb. 995, 885 N.W.2d 713 (2016). An
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arrest constitutes a seizure that must be justified by probable
cause to believe that a suspect has committed or is commit-
ting a crime. Id. Probable cause to support a warrantless arrest
exists only if law enforcement has knowledge at the time of
the arrest, based on information that is reasonably trustworthy
under the circumstances, that would cause a reasonably cau-
tious person to believe that a suspect has committed or is com-
mitting a crime. State v. Botts, 299 Neb. 806, 910 N.W.2d 779
(2018). Probable cause is a flexible, commonsense standard
that depends on the totality of the circumstances. Id. An appel-
late court determines whether probable cause existed under an
objective standard of reasonableness, given the known facts
and circumstances. Id.
Williams’ arrest was supported by probable cause and there-
fore does not warrant suppression. Neither party disputes that
Blice placed Williams under arrest. Williams’ contention that
this arrest was not supported by probable cause flies in the
face of ample circumstances giving rise to probable cause for
officers to arrest him.
At the hearing on Williams’ motion to suppress, the State
called Blice, who responded to the accident in this matter. He
testified to investigating intoxicated drivers during the course
of his time with the Omaha Police Department. He further tes-
tified that general signs of intoxication include poor balance,
an appearance of confusion, red or watery eyes, slurred or thick
speech, and an odor of alcoholic beverages.
Blice testified that he and Gentile were dispatched to the
scene of the accident at 7:14 p.m. Upon arrival, he first saw
the pickup truck on its side near 52d and Blondo Streets and a
second vehicle on fire approximately one block south. The area
wherein the accident took place was residential. Upon exit-
ing his police cruiser, Blice walked to the area of the second
vehicle and observed that it had been virtually split in half by
the impact. He testified that the speed limit at that location was
30 miles per hour, but that from his assessment of the scene,
the collision had to have occurred at a much higher speed.
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After ensuring there were no occupants left inside the second
vehicle, Blice walked back toward the pickup truck, noticing
the presence of full beer cans and ice from the impact area
all the way back to the pickup truck. Once back to the pickup
truck, Blice spoke with witnesses who had heard the crash and
presumably arrived very soon after. The witnesses described
observing the pickup truck driver get out of his vehicle and
walk to the north away from the scene. As Blice continued
speaking with witnesses, they pointed behind him and identi-
fied Williams, who was walking around, as the pickup truck
driver. By that point, Williams was located to the south of
Blice, between the two vehicles. When Blice made contact
with Williams, he observed that Williams appeared disoriented,
smelled of alcohol, and exhibited slurred speech and watery
eyes. Williams acknowledged immediately that he was the
driver of the pickup truck and was thereafter handcuffed and
placed into the police cruiser.
We find that probable cause to arrest Williams existed
at the time of arrest based on the totality of the facts and
circumstances. Blice had probable cause to arrest Williams
based on an objectively reasonable belief that Williams was
driving under the influence of alcohol when involved in this
accident. At the time of arrest, Williams was emitting an odor
of alcoholic beverage, his eyes were bloodshot and watery,
his speech was slurred and thick—all indicators of possible
intoxication. Further, although Blice had not observed the
accident, he knew that Williams had operated his pickup
truck at a high rate of speed in a residential neighborhood
sufficient to almost cut one vehicle in half and have his
pickup truck roll onto its side and slide almost one block.
This erratic driving behavior and lack of regard for the
safety of others also supports the conclusion that probable
cause existed for the arrest. Based on the totality of the facts
and circumstances present, probable cause existed to believe
Williams was operating a motor vehicle while under the
influence of alcohol.
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Moreover, Neb. Rev. Stat. § 60-697 (Cum. Supp. 2016)
requires the driver of a vehicle involved in an accident to
immediately stop and ascertain the identity of all persons
involved; provide his name, address, and license number to the
persons struck or occupying the other vehicle; and render rea-
sonable assistance to injured persons. Given Blice’s testimony
that witnesses saw Williams exit the pickup truck and walk in
the opposite direction of the accident scene and that officers
did not locate Williams until witnesses observed and identified
him, Blice had probable cause to believe Williams had left or
was attempting to leave the scene of an accident.
Finding probable cause existed to support Williams’ arrest,
we find that the district court did not err by denying Williams’
motion to suppress.
(c) Pre-Miranda Statements
Williams argues that the court erred in not suppressing state-
ments he made after being handcuffed and placed in the police
cruiser, because they were elicited in violation of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966). The State argues that, assuming the
court erred, its error was harmless. We find that the court erred
in overruling the motion to suppress Williams’ responses to
Blice’s questions asked while at the scene in the police car, but
we further find that the error was harmless.
[32-34] The Miranda Court adopted a set of safeguards to
protect suspects during modern custodial interrogations, which
have also been implemented through Nebraska courts. See
State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014). These
safeguards are implicated whenever a person is in custody
and interrogated. See id. A person is in custody for purposes
of Miranda when formally arrested or otherwise restrained
so as to be unable to move freely. See State v. Bormann, 279
Neb. 320, 777 N.W.2d 829 (2010). It is undisputed that a per-
son who is handcuffed and placed in a police cruiser’s back
seat is in custody. See id. An interrogation includes express
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questioning, its functional equivalent, and any police conduct
that police officers ought to know is reasonably likely to
elicit incriminating responses. See id. An arrestee’s voluntary
statements, which are not the product of interrogation, are not
protected under Miranda, however, and are therefore admis-
sible. See id.
[35,36] When a custodial interrogation occurs in the absence
of Miranda-style procedural safeguards, an arrestee’s self-
incriminating statements are inadmissible in court. See State
v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014) (holding
arrestee’s statements made aloud to himself while handcuffed
in police cruiser before being administered Miranda warning
were admissible because arrestee was not subject of custodial
interrogation). In determining whether the State has shown the
admissibility of custodial statements by the requisite degree of
proof, an appellate court will accept the factual determination
and credibility choices made by the trial judge unless they are
clearly erroneous and, in doing so, will look to the totality
of the circumstances. State v. Rodriguez, 272 Neb. 930, 726
N.W.2d 157 (2007).
[37] Even when a trial court errs in failing to suppress a
statement elicited in violation of Miranda v. Arizona, supra,
the error may be harmless and thus not require reversal on
appeal. Erroneous admission of evidence is a harmless error
and does not require reversal if the evidence is cumulative and
other relevant evidence, properly admitted, supports the find-
ing by the trier of fact. State v. Juranek, supra. Thus, harmless
error analysis focuses on the basis on which the trier of fact’s
verdict rested. See id. The proper inquiry is whether the trier
of fact’s verdict was certainly not attributable to the error. See
id. See, also, State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267
(2012) (holding trial court’s error in admitting arrestee’s state-
ments obtained in violation of Miranda principles was harm-
less because there was overwhelming other evidence on which
jury’s conviction likely rested).
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In this case, Williams was certainly in custody for pur-
poses of Miranda v. Arizona, supra, when he was handcuffed,
placed in the back seat of Blice’s police cruiser, and locked
in. Additionally, Blice directly questioned Williams. This
questioning constituted interrogation. As a result, Williams’
responses should not have been admitted unless the evi-
dence demonstrated that Williams was first administered a
Miranda warning and waived his rights thereunder. The dis-
trict court, whose factual determinations should be accepted
unless clearly erroneous, determined that the officers solicited
statements from Williams before he was read a Miranda warn-
ing but nonetheless found those statements to be admissible.
We find, however, that the express questioning by Blice while
Williams was handcuffed in the back of the police cruiser
constituted a custodial interrogation without the benefit of a
Miranda warning. Therefore, those statements, some of which
were incriminating, should have been suppressed.
However, in this instance, the court’s error was harmless.
A review of the record shows that the substance of the inad-
missible statements was also introduced to the jury through
admissible evidence. In violation of Miranda safeguards, Blice
asked basically three questions to which Williams responded.
Williams stated that someone pulled in front of him and that
he tried to stop, but could not do so. Williams admitted that
he was driving too fast and stated he was northbound on 52d
Street when the collision occurred. The substance of this inad-
missible evidence was properly admitted in other forms, how-
ever, including through Williams’ jailhouse telephone calls to
his wife and other witness accounts of hearing the collision and
viewing the accident scene. In addition, expert witness testi-
mony was adduced as to the speed Williams’ pickup truck was
traveling. The inadmissible statements were therefore cumula-
tive of other properly admitted evidence. Accordingly, while
the court erred in admitting Williams’ statements that were
made in the absence of Miranda safeguards, the error was
harmless and thus does not warrant reversal on appeal.
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We note for the sake of completeness that Williams did make
some other statements while in the police cruiser which were
received in evidence. However, on our review, we find that
those statements either were volunteered and not in response to
questioning or were in response to Gentile’s inquiries regarding
whether Williams needed medical attention. No incriminating
response was made to Gentile’s inquiries.
(d) Post-Miranda Statements
Williams contends the court erred in admitting statements he
made after receiving a Miranda warning at the police station,
arguing such post-Miranda statements were really made during
the continuation of a custodial interrogation begun before the
Miranda warning was administered. The State argues Williams’
statements were not obtained as the result of a continuous two-
step interrogation and thus were admissible. We find no error
in the district court’s denial of Williams’ motion to suppress his
post-Miranda statements.
[38,39] Generally, incriminating statements are admissible
when elicited after officers have provided a Miranda warn-
ing and received the accused’s voluntary waiver. See Missouri
v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643
(2004). Courts must consider whether a Miranda warning,
when given after an arrestee has already made incriminating
statements, is sufficient to advise and convey that the arrestee
may choose to stop talking even though he or she has spoken
before the warning was administered. See id. “The threshold
issue when interrogators question first and warn later is thus
whether it would be reasonable to find that in these circum-
stances the warnings could function ‘effectively’ as Miranda
requires.” Id., 542 U.S. at 611-12. Where the warning is not
effective to place an arrestee in a position to make an informed
choice to stop talking, there can be reason neither to accept
the warning as compliant with Miranda nor to treat the second
stage of interrogation as separate from the first, inadmissible
stage. See Missouri v. Seibert, supra.
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[40] To determine whether a midinterrogation Miranda
warning is sufficient to warrant the admission of post-Miranda
statements, courts should consider five factors developed by
the Court in Seibert:
the completeness and detail of the questions and answers
in the first round of interrogation, the overlapping con-
tent of the two statements, the timing and setting of the
first and second, the continuity of police personnel, and
the degree to which the interrogator’s questions treated
the second round as continuous with the first.
Id., 542 U.S. at 615.
In applying the Seibert factors, the court in State v. Juranek,
287 Neb. 846, 844 N.W.2d 791 (2014), held that the circum-
stances of the pre- and post-Miranda interrogations therein
showed that the Miranda warning was effective. In particular,
the court held that the accused’s post-Miranda statements were
not rendered inadmissible due to the pre-Miranda interroga-
tion, because the initial interrogation consisted of only a single
question that was focused on matters other than key points of
the investigation. See State v. Juranek, supra.
[41] The court again examined and applied the Seibert fac-
tors in State v. Clifton, 296 Neb. 135, 156, 892 N.W.2d 112,
131 (2017), and held that in instances of midinterrogation
Miranda warnings, violations under Seibert must include “an
inculpatory prewarning statement that somehow overlaps with
statements made in the postwarning interrogation.” Notably,
in Clifton, only 5 minutes of pre-Miranda questioning took
place, and the questioning focused on information such as the
spelling of the defendant’s name, his address, and educational
background. In fact, the defendant in Clifton made no incrimi-
nating statements before a Miranda warning was administered.
Accordingly, the court in Clifton held that the trial court
did not err in denying the defendant’s motion to suppress
his statements.
In this case, before administering to Williams a Miranda
warning, Blice spoke with him while he was handcuffed and
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in the back of a police cruiser shortly before 7:30 p.m. Blice
asked Williams a few questions regarding what had happened,
what direction he was going, and how fast he was driving when
the accident occurred. The entire encounter was brief, lasting
approximately a minute. Blice and Gentile then drove Williams
to the police station.
After transporting Williams to the police station, Blice
administered a Miranda warning to Williams at 8:34 p.m.
as noted in the driving under the influence supplementary
report and field notes form, and Williams thereafter agreed
to answer Blice’s interview questions. Blice testified that he
typed responses into the form as Williams answered his ques-
tions. Blice asked Williams whether he was operating a vehi-
cle, where he was headed, whether and how much he had been
drinking, and whether he was ill or had any injuries. Williams
answered that he was driving north to his home and that he
had ingested “too many beers,” that being six between 3 p.m.
and 6:45 p.m. He also stated that he was feeling the effects of
alcohol less at the time of the interview than at the time he
was first contacted by police. He denied that he had taken any
medications and stated that he did believe his drinking had
affected his ability to drive safely. The interview concluded at
8:39 p.m.
Although during the pre-Miranda interrogation, Williams
admitted to being the driver of the pickup truck that struck and
injured the victims in this matter, he did not at that time men-
tion drinking any alcohol. He merely stated the direction he
was driving and that he could not stop before impact. Blice’s
pre-warning questions did not go to many of the key points
of the investigation. Accordingly, while some of Williams’
statements do overlap the two interrogations, they are not the
sort of overlapping and inculpatory statements that the court
in State v. Clifton, supra, found was necessary for a Miranda
violation under Missouri v. Seibert, 542 U.S. 600, 124 S. Ct.
2601, 159 L. Ed. 2d 643 (2004).
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Moreover, upon evaluation of the Seibert factors, most of
them fall in favor of admissibility in this instance. Although
there was continuity of police personnel throughout Williams’
pre- and post-Miranda warning interrogations, the interroga-
tions took place roughly an hour apart and were conducted in
different locations. Additionally, Williams’ prewarning answers
were cursory and devoid of detail, and the postwarning ques-
tions did not act as a mere continuation of the prewarning
interrogation. While some topics were addressed during both
interrogations, the postwarning questions were more detailed
and focused more on Williams’ alcohol consumption, which
was not covered in the prewarning questions. Accordingly,
under Missouri v. Seibert, supra, Williams’ two-step interroga-
tion did not violate Miranda principles. Thus, we find no error
in the district court’s denial of Williams’ motion to suppress his
post-Miranda statements.
V. CONCLUSION
Having found no error or, alternatively, only harmless error
in the orders and rulings challenged by Williams herein, we
hereby affirm Williams’ convictions.
A ffirmed.