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08/22/2017 09:09 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     24 Nebraska A ppellate R eports
                                                 STATE v. WILLIAMS
                                                Cite as 24 Neb. App. 920




                                        State of Nebraska, appellee, v.
                                        Barbara J. Williams, appellant.
                                                     ___ N.W.2d ___

                                          Filed August 8, 2017.    No. A-16-910.

                1.	 Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
                    tions of law.
                2.	 Judgments: Appeal and Error. On a question of law, an appellate court
                    reaches a conclusion independent of the court below.
                3.	 Motions for Mistrial: Pleadings: Prosecuting Attorneys: Intent:
                    Appeal and Error. While the denial of a plea in bar generally involves
                    a question of law, an appellate court reviews under a clearly erroneous
                    standard a finding concerning the presence or absence of prosecutorial
                    intent to provoke the defendant into moving for a mistrial.
                4.	 Pretrial Procedure: Appeal and Error. Trial courts have broad dis-
                    cretion with respect to sanctions involving discovery procedures, and
                    their rulings thereon will not be reversed in the absence of an abuse
                    of discretion.
                5.	 Double Jeopardy: Motions for Mistrial. It is the general rule that
                    where a court grants a mistrial upon a defendant’s motion, the Double
                    Jeopardy Clause does not bar a retrial.
                6.	 Motions for Mistrial: Prosecuting Attorneys: Intent: Proof. It is the
                    defendant’s burden to prove that the prosecuting attorney engaged in
                    misconduct intended to provoke a mistrial, and the trial court’s finding
                    regarding whether the prosecuting attorney intended to cause a mistrial
                    is a finding of fact.
                7.	 ____: ____: ____: ____. Factors that a court may consider in deter-
                    mining whether the prosecutor intended to provoke the defendant into
                    moving for a mistrial include the following: (1) whether there was a
                    sequence of overreaching or error prior to the errors resulting in the
                    mistrial; (2) whether the prosecutor resisted the motion for mistrial;
                    (3) whether the prosecutor testified, and the court below found, that
                    there was no intent to cause a mistrial; (4) the timing of the error;
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                24 Nebraska A ppellate R eports
                            STATE v. WILLIAMS
                           Cite as 24 Neb. App. 920

     (5) whether the record contains any indication that the prosecutor
     believed the defendant would be acquitted; (6) whether a second trial
     would be desirable for the government; and (7) whether the prosecutor
     proffered some plausible justification for his or her actions.
 8.	 Records: Appeal and Error. It is incumbent upon an appellant to sup-
     ply a record which supports his or her appeal; absent such a record, as
     a general rule, the decision of the lower court as to those errors is to
     be affirmed.

   Appeal from the District Court for Sarpy County: David K.
A rterburn, Judge. Affirmed.

  Thomas P. Strigenz, Sarpy County Public Defender, and
Colleen M. Hassett for appellant.

   Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
for appellee.

   Moore, Chief Judge, and Pirtle and Bishop, Judges.

   Pirtle, Judge.
                     INTRODUCTION
  Barbara J. Williams appeals the order of the district court for
Sarpy County which denied her plea in bar following a mistrial
and denied her motion for other relief. For the reasons that fol-
low, we affirm.

                        BACKGROUND
   Williams was charged with one count of child abuse, a
Class IIIA felony. Williams provided nursing care for a minor
child who was disabled and nonverbal. On July 18, 2014,
Williams cared for the child from 8 a.m. to 6 p.m. After her
shift ended, the parents cared for the child. That evening, the
parents discovered a skin injury on the child and drove her
to a hospital for treatment. Williams denied that the injury
occurred during her shift.
   Prior to trial, the parties agreed to stipulate to the intro-
duction of the cell phone records of Williams and the child’s
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                        STATE v. WILLIAMS
                       Cite as 24 Neb. App. 920

parents, and no records custodian from the service provider
was called to testify. One exhibit agreed upon by the par-
ties was a chart listing all of the incoming and outgoing
calls made by the child’s mother on the day of the incident.
The chart included the calling number, the called number,
the digits dialed, whether the call was inbound or outbound,
and the duration of the call in seconds. The chart included
the start date and end date of each call, showing the date
and time in military time. The chart also included a column
labeled “NEID” and the data in that column was shown as a
two- or three-digit numerical value. A document titled “Key
to Understanding CDMA Call Detail Reports” was provided.
The key states that “NEID . . . reflects which network element
handled the call.”
   A jury was empaneled and sworn on Tuesday, May 10,
2016, and evidence was adduced from May 10 through 13. The
child’s mother testified regarding the timeline in which she
discovered her child’s injuries and called her friend, who was a
nurse, prior to taking the child to the hospital for medical treat-
ment. The defense focused on the timing and number of calls
made by the mother before seeking medical treatment.
   At some point during the second day of the trial, a deputy
county attorney recalled a case in which times represented in
cell phone records were recorded in different area codes, so the
values were “off by an hour.” During a trial recess, the deputy
county attorney spoke to a representative from the service
provider and confirmed that some of the mother’s calls were
shown in mountain time, even though the calls were placed
within the central standard time zone. One of the State’s wit-
nesses, a detective, obtained a separate key for understanding
the cell phone records, which included the locations of the
cellular towers which corresponded with the NEID values
on the cell phone logs. This information was not relayed to
defense counsel.
   The detective testified on Friday, May 13, 2016. He testi-
fied that the “NEID” column of the cell phone records relate
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              24 Nebraska A ppellate R eports
                       STATE v. WILLIAMS
                      Cite as 24 Neb. App. 920

to the location of the cellular tower and that it “could be in a
different part of the country” from where the call was initiated.
On cross-examination, he was questioned about the location of
the cellular towers through which Williams’ calls were routed.
He did not indicate that he had received a new key from the
service provider or indicate that the records in evidence were
inaccurate or incomplete.
   The State rested its case in chief on Friday, May 13, 2016.
That day, a representative from the service provider confirmed
the availability to testify regarding the location of the NEID
and its impact on the time stamps in the call log.
   Williams began presenting her defense, including the affi-
davit of an expert witness who relied, in part, on the assump-
tion that the times in the call log were all recorded in central
standard time. The State announced that it had received infor-
mation discrediting the chronological accuracy of the cell
phone records and that it intended to adduce that evidence
on rebuttal.
   Williams moved for a mistrial, and the district court sus-
tained her motion. The court found that this case was pre-
mised, in large part, on the cell phone records and that the
State’s late disclosure of evidence discrediting the accuracy
of the records “put the defense in an untenable position.”
The court found that simply disallowing the State’s rebuttal
evidence was not a sufficient remedy and that a mistrial was
necessary.
   On May 20, 2016, Williams filed a motion for relief seek-
ing the following: (1) an order dismissing the charges against
her; (2) an order finding the State in contempt of written and
verbal court orders regarding pretrial matters; (3) an order
directing the State to pay her expert witness fees, her attorney
fees, and the costs incurred at trial on May 11 through 13;
and/or (4) an order directing the State to reimburse her for the
wages she lost as a result of attending trial on May 11 through
13. On May 23, Williams filed a plea in bar, asserting that
retrial of the State’s charge against her should be barred by the
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                        STATE v. WILLIAMS
                       Cite as 24 Neb. App. 920

prohibition against double jeopardy. She asserted that the State
failed to timely disclose material information and acted with
the intent “to goad [her] into moving for mistrial.”
   On June 30, 2016, a hearing was held on Williams’ motions.
The following exhibits were offered and received into evi-
dence: two trial exhibits containing cell phone records, as well
as a key for understanding the service provider’s records; a
transcript of the motion for mistrial proceedings; a transcript
of the detective’s trial testimony; a deposition of Williams’
employer; and affidavits from Williams, her counsel, and coun-
sel for the State.
   The court made factual findings on each of the factors
set forth in State v. Muhannad, 286 Neb. 567, 837 N.W.2d
792 (2013) (Muhannad I), specifically regarding whether the
State intended to provoke Williams into moving for mistrial.
The district court found the State did not have the intent to
goad Williams into moving for mistrial, and the court denied
Williams’ plea in bar and her motion for other relief. Williams
timely appealed.

                ASSIGNMENTS OF ERROR
   Williams asserts the district court erred in overruling her
motion for plea in bar. She also asserts the district court erred
in denying her motion for other relief.

                   STANDARD OF REVIEW
   [1,2] Issues regarding the grant or denial of a plea in bar are
questions of law. State v. Arizola, 295 Neb. 477, 890 N.W.2d
770 (2017). On a question of law, an appellate court reaches a
conclusion independent of the court below. Id.
   [3] While the denial of a plea in bar generally involves a
question of law, we review under a clearly erroneous standard
a finding concerning the presence or absence of prosecutorial
intent to provoke the defendant into moving for a mistrial.
State v. Muhannad, 290 Neb. 59, 858 N.W.2d 598 (2015)
(Muhannad II).
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                        STATE v. WILLIAMS
                       Cite as 24 Neb. App. 920

   [4] Trial courts have broad discretion with respect to sanc-
tions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion.
State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).

                             ANALYSIS
Plea in Bar.
   The parties do not dispute the propriety of the mistrial. The
issue is whether concepts of double jeopardy bar a retrial and,
thus, whether the court should have granted Williams’ plea
in bar.
   [5,6] It is the general rule that where a court grants a mistrial
upon a defendant’s motion, the Double Jeopardy Clause does
not bar a retrial. Muhannad II. There is a “‘“narrow excep-
tion”’” to this general rule. Id. at 65, 858 N.W.2d at 604. In
Oregon v. Kennedy, 456 U.S. 667, 679, 102 S. Ct. 2083, 72
L. Ed. 2d 416 (1982), the U.S. Supreme Court held that where
a defendant moves for and is granted a mistrial based upon
prosecutorial misconduct, double jeopardy bars retrial when
the “conduct giving rise to the successful motion for a mistrial
was intended to provoke the defendant into moving for a mis-
trial.” In Muhannad I, the Nebraska Supreme Court declined to
extend exceptions discussed in Oregon v. Kennedy beyond situ-
ations where the prosecutor intended that misconduct would
provoke a mistrial. It is the defendant’s burden to prove this
intent, and the trial court’s finding regarding whether the pros-
ecuting attorney intended to cause a mistrial is a finding of
fact. Muhannad I.
   Williams asserts that the court erred in overruling her plea
in bar because there was sufficient evidence that the State
failed to disclose evidence to the defense with the intent to
provoke the defense to move for a mistrial. Williams asserts
that the prosecutor purposely questioned the detective in a way
that would provoke cross-examination by Williams’ counsel
which would “‘open the door’” for rebuttal, using the newly
discovered key which had not been disclosed to the defense.
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               24 Nebraska A ppellate R eports
                        STATE v. WILLIAMS
                       Cite as 24 Neb. App. 920

See brief for appellant at 6. She asserts the prosecutor deliber-
ately courted a mistrial, making normal sanctions inadequate.
She cites case law which states that a “‘scheming prosecutor
cannot be rewarded by being handed the very thing toward
which he connived.’” Muhannad I, 286 Neb. at 578, 837
N.W.2d at 801.
   [7] In Muhannad I, the Nebraska Supreme Court set forth a
list of objective factors derived from and articulated by state
and federal courts for consideration when determining whether
prosecutors intended to provoke the defense into moving for
a mistrial. These factors included, but were not limited to, the
following: (1) whether there was a sequence of overreaching
or error prior to the errors resulting in the mistrial; (2) whether
the prosecutor resisted the motion for mistrial; (3) whether the
prosecutor testified, and the court below found, that there was
no intent to cause a mistrial; (4) the timing of the error; (5)
whether the record contains any indication that the prosecu-
tor believed the defendant would be acquitted; (6) whether a
second trial would be desirable for the government; and (7)
whether the prosecutor proffered some plausible justification
for his or her actions. See Muhannad I.
   In this case, the district court considered each of those fac-
tors and determined that the evidence was insufficient to sup-
port a finding that the State failed to make its disclosure to the
defendant with the intent to goad the defense into moving for
a mistrial. The court stated that the prosecutors proffered what
they believed to be a plausible justification for their failure
to timely disclose the newly discovered information—they
believed that the information could be reserved for rebuttal.
The court noted that this belief was mistaken and resulted
in inaccurate information continually being presented to the
jury. The court found that although the failure to disclose the
information did constitute misconduct, it did not meet the
narrow and rigorous standards set out in Oregon v. Kennedy,
456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982), and
Muhannad I.
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               24 Nebraska A ppellate R eports
                        STATE v. WILLIAMS
                       Cite as 24 Neb. App. 920

   [8] We note that on appeal, Williams asserts that “the Court
had made repeated admonitions to [the State’s] counsel to more
efficiently use time at trial” in support of her argument that the
State intended to extend the trial into the following week until
a rebuttal witness became available. Brief for appellant at 9.
The record before us contains no evidence of any such admo-
nitions. It is incumbent upon an appellant to supply a record
which supports his or her appeal. State v. Boche, 294 Neb. 912,
885 N.W.2d 523 (2016). Absent such a record, as a general
rule, the decision of the lower court as to those errors is to be
affirmed. Id.
   Upon our review, the record supports the trial court’s con-
clusions. The record before us does not demonstrate a sequence
of overreaching or error prior to the error resulting in the mis-
trial. The prosecutors submitted affidavits stating that they
had no intention of causing a mistrial and that they believed
the evidence was sufficient to gain a conviction. It does not
appear from the record that the State intentionally committed
prosecutorial misconduct or intended that such conduct would
provoke a mistrial. Therefore, we find that the district court’s
determination was not clearly erroneous and that Williams’
plea in bar was properly denied.

Motion for Other Relief.
   Williams asserts the district court erred in denying her
motion for other relief because the State’s “knowing failure to
timely disclose material evidence to [Williams] squandered sig-
nificant financial and other resources of the Court, [Williams’]
counsel and [Williams] herself.” Brief for appellant at 12.
   As previously discussed, the district court determined that,
because the State did not act with the intent to provoke a mis-
trial, the motion for other relief must also fail and be denied.
Trial courts have broad discretion with respect to sanctions
involving discovery procedures, and their rulings thereon will
not be reversed in the absence of an abuse of discretion. State
v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).
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              24 Nebraska A ppellate R eports
                       STATE v. WILLIAMS
                      Cite as 24 Neb. App. 920

   When considering Williams’ motion for mistrial, the district
court disagreed with the State’s actions in accordance with
the “mistaken” belief that the prosecutors were not required
to inform the defense of the newly discovered evidence they
intended to use for rebuttal. However, the district court deter-
mined that there was nothing “nefarious” in the State’s action.
So, while sanctions could have been ordered, the district court
chose not to order them, and we find no abuse of discretion in
denying Williams’ motion for other relief.
                       CONCLUSION
   For the foregoing reasons, we affirm the judgment of the
trial court denying Williams’ plea in bar and her motion for
other relief.
                                                  A ffirmed.
