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09/20/2019 01:05 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          304 Nebraska R eports
                                                  STATE v. HATFIELD
                                                   Cite as 304 Neb. 66




                                        State of Nebraska, appellee, v.
                                        Steven J. H atfield, appellant.
                                                     ___ N.W.2d ___

                                        Filed September 13, 2019.   No. S-18-1107.

                 1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
                    case from the county court, the district court acts as an intermediate
                    court of appeals, and its review is limited to an examination of the
                    record for error or abuse of discretion.
                 2. Courts: Appeal and Error. Both the district court and a higher appel-
                    late court generally review appeals from the county court for error
                    appearing on the record.
                 3. Judgments: Appeal and Error. When reviewing a judgment for errors
                    appearing on the record, an appellate court’s inquiry is whether the deci-
                    sion conforms to the law, is supported by competent evidence, and is
                    neither arbitrary, capricious, nor unreasonable.
                 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. Criminal Law: Pretrial Procedure. Discovery in a criminal case is
                    generally controlled by either a statute or court rule.

                 Appeal from the District Court for Gage County: Julie D.
               Smith, Judge. Affirmed.
                    Steven J. Mercure, of Nestor & Mercure, for appellant.
                  Douglas J. Peterson, Attorney General, and Nathan A. Liss
               for appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
               Papik, JJ.
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              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                             STATE v. HATFIELD
                              Cite as 304 Neb. 66

    Heavican, C.J.
                      INTRODUCTION
   Steven J. Hatfield was convicted of misdemeanor driving
under the influence (DUI). His conviction and sentence were
affirmed by the district court, sitting as an intermediate court
of appeals. He appeals. We affirm.
                        BACKGROUND
   Hatfield was convicted in the county court for Gage County
of DUI and appealed that conviction to the district court for
Gage County. The district court reversed the county court’s
judgment based not on the arguments made by Hatfield, but
instead upon the U.S. Supreme Court’s decision in Birchfield
v. North Dakota.1 This court reviewed that decision and con-
cluded that the good faith exception to the exclusionary rule
applied to a pre-Birchfield warrantless blood draw and that the
results of Hatfield’s blood test were therefore admissible.2 As
such, we found that the district court, sitting as an appellate
court, erred in reversing Hatfield’s conviction and vacating his
sentence. We remanded the cause for the district court to con-
sider Hatfield’s original errors.
   Upon remand, the district court considered Hatfield’s assign-
ment of error alleging that the county court erred in failing to
exclude evidence that was offered by the State in violation of
both the court’s June 29, 2015, order of discovery and Neb.
Rev. Stat. § 29-1912 (Reissue 2016).
   The facts relating to this discovery dispute are as follows:
The county court entered an order of discovery on June 29,
2015. That order was in response to an oral motion made
at a pretrial hearing. The State had already filed a notice on
February 3, 2015, indicating that it had complied with discov-
ery consisting of 51 pages of documents and that other evi-
dence was available for review with law enforcement or at the
Gage County Attorney’s office.

1
    Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d
    560 (2016).
2
    State v. Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                       STATE v. HATFIELD
                        Cite as 304 Neb. 66

   On November 4, 2015, Hatfield filed a motion entitled
“Sixth Motion in Limine.” In that motion, Hatfield asserted
that the State had failed to provide him with a witness list or
with copies of “the Beatrice Community Hospital’s Clinical
Laboratory Improvement Amendments” (CLIA) certificate.
Hatfield also asserted that the State failed to provide him with
a copy of title 177 of the Nebraska Administrative Code deal-
ing with the testing of the alcohol content in blood and breath.
Hatfield sought an order prohibiting the State from offering
testimony of any witnesses and from offering as evidence the
CLIA certificate or title 177.
   Jury selection was held on November 5, 2015. After the
jury was empaneled, the county court took up Hatfield’s sixth
motion in limine. At the hearing, Hatfield argued that he had
not received a list of witnesses the State intended to call,
which he claimed was required under § 29-1912, and that
he had not received a list of the specific written exhibits the
State intended to offer at trial. As was noted in his written
motion, Hatfield argued that the witnesses the State apparently
intended to call should not be permitted to testify, because
those witnesses had not been disclosed.
   At no point during the course of this argument did Hatfield
ask for a continuance. The State, however, did seek a con-
tinuance in the event the court was inclined to grant the sixth
motion in limine, because in the State’s view, a continuance
was the proper cure for delay of notification of witnesses.
The county court ultimately denied the motion in limine, and
trial began.
   At the conclusion of the first day of trial, the county court
indicated it wanted to revisit the sixth motion in limine. That
issue was again addressed the morning prior to the second day
of trial. Following arguments at which the parties offered case
law in support of their respective positions, the court noted
that it did not want to grant a continuance because the jury
had already been empaneled and because in any case, barring
the use of evidence was one remedy available but was not the
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                        STATE v. HATFIELD
                         Cite as 304 Neb. 66

only remedy available, and that Hatfield had to show he was
prejudiced by the failure to disclose. Because Hatfield was
aware he was missing the information and could have sought
it via a motion to compel rather than by a motion in limine
filed just prior to trial (at 4:31 p.m. the day before trial was
set to begin), he had not shown prejudice. As such, the county
court noted its prior ruling on the sixth motion in limine
stood. While the county court observed it was not going to
continue the trial at that point, Hatfield did not ask for a con-
tinuance at any time during the proceedings or seek any relief
besides complete exclusion of the evidence.
   Hatfield also contends the State failed to disclose the con-
viction upon which it was relying to support a second-offense
charge against Hatfield. The district court rejected this claim,
noting that Hatfield was aware the complaint charged a second
offense and that Hatfield had been provided with his driv-
er’s abstract identifying by case number the prior DUI case.
Hatfield was offered, but declined, a continuance in connection
with this objection.
   In this second appeal, the district court concluded that
the county court had not erred, and it consequently affirmed
Hatfield’s conviction and sentence. Hatfield now appeals that
decision to this court.
                 ASSIGNMENTS OF ERROR
   Hatfield assigns that the district court (1) erred in affirm-
ing the county court’s admission of evidence offered at trial
that was not disclosed to him as was required by the court’s
June 29, 2015, order and by § 29-1912 and (2) erred when
sentencing him, because the prior conviction the court relied
upon for a second offense was not disclosed to Hatfield prior
to sentencing.
                   STANDARD OF REVIEW
   [1-3] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
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              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                             STATE v. HATFIELD
                              Cite as 304 Neb. 66

or abuse of discretion.3 Both the district court and a higher
appellate court generally review appeals from the county court
for error appearing on the record.4 When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable.5
   [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.6

                            ANALYSIS
   On appeal, Hatfield argues two separate incidents in which
the State failed to disclose evidence. First, Hatfield contends
the State failed to file witness and document lists despite being
ordered to do so and that as such, its witnesses should not
have been permitted to testify and certain documents—spe-
cifically the CLIA certificate and title 177 of the Nebraska
Administrative Code—should not have been admitted into
evidence. Hatfield also argues that the State did not provide a
copy of a prior conviction sufficient to support a finding that
Hatfield had previously been convicted of DUI.
   [5] Discovery in a criminal case is generally controlled by
either a statute or court rule.7 Nebraska’s principal discovery
statute, § 29-1912, sets forth a list of evidence that may be
subject to discovery at the discretion of the trial court. The list
includes a defendant’s prior criminal record, the names and
addresses of witnesses on whose evidence the charge is based,
and documents, papers, books, accounts, photographs, objects,
or other tangible things of whatsoever kind or nature which

3
    Id.
4
    Id.
5
    Id.
6
    State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).
7
    Id.
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              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                            STATE v. HATFIELD
                             Cite as 304 Neb. 66

could be used as evidence by the prosecuting authority.8 Neb.
Rev. Stat. § 29-1919 (Reissue 2016) sets forth various remedies
the court may employ when there is a claimed violation of a
discovery order: The court may (1) order such party to permit
discovery or inspection of materials not previously disclosed,
(2) grant a continuance, (3) prohibit a party from calling a wit-
ness not disclosed or introduce evidence not disclosed, or (4)
enter another order as it deems just under the circumstance. If a
continuance would have been a sufficient remedy for a belated
disclosure in violation of § 29-1912, a defendant who fails to
request a continuance waives any rights he or she may have
had pursuant to § 29-1912.9
   Hatfield’s arguments are without merit. The record shows
that by the time the county court ordered the parties to engage
in discovery, the State had, over 3 months prior, forwarded
51 pages of documents to Hatfield and informed him that still
other evidence was available for his review at its offices or
with law enforcement. That notice did not include a witness
list. By the time the order for discovery was made, discovery
had already taken place. There was no indication from a pre-
trial discussion about discovery, or the State’s notice, that the
parties anticipated a forthcoming witness list.
   Hatfield filed his sixth motion in limine 9 months after
discovery first commenced. In that motion, he made specific
reference to the witnesses and documentation he believed to
be missing. At least as of that date, it was clear Hatfield was
aware of what discovery he had not received, yet our record
does not indicate that he filed a motion to compel or sought
a continuance. Instead, in the late afternoon of the day before
trial, Hatfield filed a motion in limine seeking to prevent the
State from offering this evidence at trial.
   While a court may order that a party not be permitted to offer
evidence at trial which it failed to disclose, this court has stated

8
    § 29-1912.
9
    See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
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               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                          STATE v. HATFIELD
                           Cite as 304 Neb. 66

a preference for a continuance in such situations.10 Despite hav-
ing 9 months to do so, Hatfield failed to seek a motion to com-
pel or a continuance. The same holds true for Hatfield’s prior
conviction. A copy of Hatfield’s driver’s abstract was included
in the discovery material provided to him, and a certified copy
was offered at trial. Hatfield objected and was offered a con-
tinuance, but declined and stood on his objection.
   The fact that Hatfield’s driver’s abstract—which listed the
challenged prior conviction—was disclosed placed Hatfield on
notice of the conviction the State planned to use to enhance
his sentence. Hatfield could have investigated the conviction in
more detail; he apparently chose not to do so. At the time of
sentencing, not only did Hatfield not seek a continuance, but he
declined one offered by the county court. In addition, the State
noted at the sentencing hearing that a certified copy of the
conviction had been available for review at its offices should
Hatfield have chosen to review it in person.
   We reject Hatfield’s claims due to his failure to seek a
continuance, and we find no prejudice owing to any belated
disclosures on the State’s part. Hatfield contends that because
the State did not file a witness list, all its witnesses were
effectively surprise witnesses. Specifically, Hatfield argues that
Deputy Robert Sandersfeld and Investigator John Chavez of the
Gage County sheriff’s office were surprise witnesses involved
in the chain of custody of his blood sample test and that he
was unable to prepare for these witnesses. But Hatfield does
not show what different preparation he would have made or
how that preparation would have changed the examination of
Sandersfeld and Chavez, let alone the examination of all of the
State’s witnesses. Moreover, we observe that the record shows
that while a witness list was not provided, the identities of the
witnesses the State ultimately called, including Sandersfeld
and Chavez, were available in the discovery made or offered to
Hatfield. This claim fails.

10
     See id.
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           Nebraska Supreme Court A dvance Sheets
                   304 Nebraska R eports
                        STATE v. HATFIELD
                         Cite as 304 Neb. 66

   We also reject Hatfield’s assertion regarding both title 177
of the Nebraska Administrative Code and the CLIA certificate.
Hatfield was charged with DUI. Title 177 is a public record
routinely applied in such cases, and CLIA certificates are rou-
tinely referenced in cases involving laboratory testing. Hatfield
exhibited that knowledge by referencing both in his motion in
limine. Hatfield has not shown that he was prejudiced by the
State’s belated disclosure of either.
   Finally, we reject the assertion that Hatfield was preju-
diced by the State’s failure to disclose and provide a copy of
his prior DUI conviction for enhancement purposes. Hatfield
was charged with second-offense DUI. The information filed
against him referenced the same conviction he now complains
was not disclosed to him. As noted above, Hatfield was pro-
vided with a copy of his driver’s abstract which included the
now-challenged conviction.
   We have consistently held that in discovery disputes where
a continuance can cure any prejudice caused by a failure to
disclose, it is that remedy that should be utilized. We reject
Hatfield’s invitation to overrule that authority.
   We review the lower court’s action for an abuse of discre-
tion. Hatfield declined to ask for a continuance, declined to
join in the State’s suggestion of a continuance at trial, and at
sentencing declined to accept the court’s offer of a continu-
ance. Hatfield has also failed to show that he was prejudiced
by the State’s belated disclosures. Hatfield’s arguments on
appeal are without merit.
                        CONCLUSION
   We affirm the decision of the district court affirming the
judgment and conviction of the county court.
                                                  A ffirmed.
   Freudenberg, J., not participating.
