                        Nebraska Advance Sheets
	                                STATE v. PATTON	899
	                               Cite as 287 Neb. 899

permitted to clarify Susan’s wishes,6 which he did by asking
whether she had questions for him. And when he so inquired,
Susan indicated that she did, asking about the autopsy. Susan
then willingly answered questions posed by Farber in connec-
tion with the coroner’s report for the autopsy.
   For the above reasons, I would conclude that Susan’s state-
ments from 3:43 to 4 a.m. did not need to be suppressed,
because Susan did not unambiguously invoke her right to
remain silent.

 6	
      See Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 176 L. Ed. 2d
      1098 (2010).




                     State of Nebraska, appellee, v.
                      Marqus J. Patton, appellant.
                                  ___ N.W.2d ___

                        Filed April 11, 2014.   No. S-13-105.

 1.	 Constitutional Law: Witnesses: Appeal and Error. An appellate court
     reviews de novo a trial court’s determination of the protections afforded by the
     Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article
     I, § 11, of the Nebraska Constitution and reviews the underlying factual determi-
     nations for clear error.
 2.	 Constitutional Law: Due Process. The determination of whether procedures
     afforded an individual comport with constitutional requirements for procedural
     due process presents a question of law.
 3.	 Judgments: Appeal and Error. When issues on appeal present questions of law,
     an appellate court has an obligation to reach an independent conclusion irrespec-
     tive of the decision of the court below.
 4.	 Rules of Evidence: Appeal and Error. The exercise of judicial discretion is
     implicit in the determinations of relevancy under Neb. Evid. R. 403, Neb. Rev.
     Stat. § 27-403 (Reissue 2008), and a trial court’s decisions regarding them will
     not be reversed absent an abuse of discretion.
 5.	 Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
     of the trial court to determine relevancy and admissibility of evidence of other
     wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum.
     Supp. 2012), and the trial court’s decision will not be reversed absent an abuse
     of discretion.
 6.	 Criminal Law: Constitutional Law: Trial: Witnesses. The right of a person
     accused of a crime to confront the witnesses against him or her is a fundamental
    Nebraska Advance Sheets
900	287 NEBRASKA REPORTS


       right guaranteed by the 6th amendment to the U.S. Constitution, as incorpo-
       rated in the 14th amendment, as well as by article 1, § 11, of the Nebraska
       Constitution.
 7.	   Constitutional Law: Trial: Witnesses. The functional purpose of the
       Confrontation Clause is to ensure the integrity of the factfinding process through
       the provision of an opportunity for effective cross-examination.
 8.	   Constitutional Law: Trial: Witnesses: Words and Phrases. The right to
       confrontation means more than merely being allowed to confront the witness
       physically. But the right is not unlimited, and only guarantees an opportunity for
       effective cross-examination, not cross-examination that is effective in whatever
       way and to whatever extent the defense may wish.
 9.	   Trial: Testimony. When the object of the cross-examination is to collaterally
       ascertain the accuracy or credibility of the witness, the scope of the inquiry is
       ordinarily subject to the discretion of the trial court.
10.	   Constitutional Law: Trial: Juries: Witnesses. An accused’s constitutional
       right of confrontation is violated when either (1) he or she is absolutely pro-
       hibited from engaging in otherwise appropriate cross-examination designed to
       show a prototypical form of bias on the part of the witness, or (2) a reasonable
       jury would have received a significantly different impression of the witnesses’
       credibility had counsel been permitted to pursue his or her proposed line of
       cross-examination.
11.	   Criminal Law: Due Process: Witnesses. The existence of an agreement to tes-
       tify by a witness under threats or promises of leniency made by the prosecutor is
       relevant to the credibility of such witness, and failure to bring that to the attention
       of the jury denies the defendant due process of law.
12.	   Criminal Law: Witnesses. An expectation of leniency on the part of a witness,
       absent evidence of any expressed or implied agreement, need not be revealed to
       the jury.
13.	   Records: Appeal and Error. A party’s brief may not expand the eviden-
       tiary record.
14.	   Evidence: Records: Appeal and Error. A bill of exceptions is the only vehicle
       for bringing evidence before an appellate court; evidence which is not made a
       part of the bill of exceptions may not be considered.

  Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.

  Thomas C. Riley, Douglas County Public Defender, for
appellant.

  Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.

  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
                  Nebraska Advance Sheets
	                        STATE v. PATTON	901
	                       Cite as 287 Neb. 899

   Stephan, J.
   A jury convicted Marqus J. Patton of first degree murder
and use of a deadly weapon to commit a felony as a result of
his involvement in a fatal shooting which occurred during a
home invasion robbery. Two key prosecution witnesses were
participants in the crime, and another was the victim’s former
girlfriend. On appeal, Patton contends the trial court errone-
ously restricted his cross-examination of these witnesses and
otherwise impeded his efforts to impeach them in violation of
his constitutional rights of confrontation and due process of
law. We conclude there was no reversible error and affirm.

                       I. BACKGROUND
    On July 6, 2011, Patton was at the home of his friend
Nicholas Ely. Also present were Ryan Elseman and Emily
G., a juvenile. The group decided to go swimming, and
Drake Northrop arrived at around 11:45 a.m. to give them a
ride. After setting out in Northrop’s vehicle, they decided to
stop to buy marijuana from Kristopher Winters before going
swimming.
    Emily directed the group to Winters’ home, where she had
been before. She testified that while they were in the car, she
heard the others discussing a plan to rob Winters. Northrop tes-
tified that it was Ely and Elseman who devised the plan to rob
Winters and recalled them saying it would be an easy “lick,” a
slang term for robbery. Northrop further testified that both he
and Patton agreed with the plan.
    Northrop parked the car around the corner from Winters’
home. Emily went to the door alone and agreed to send a
text message to the others when she was inside. While near
Winters’ home, Emily encountered Winters’ friend Eric Brusha.
Brusha called Winters on his cell phone, and Winters let Emily
and Brusha in the house. Emily then sent a text message to
Elseman stating that she was inside.
    A few minutes later, Ely, Elseman, Patton, and Northrop
entered Winters’ home. Elseman and Patton both carried fire-
arms. When Elseman held his weapon up, Winters rushed at
Elseman. Patton struck Winters as he fought with Elseman,
and then Winters struck Patton with a chair. Patton yelled for
    Nebraska Advance Sheets
902	287 NEBRASKA REPORTS



Elseman to shoot, and a gunshot struck Winters in the neck,
causing his death. As Winters fell, Ely, Elseman, Patton, and
Northrop ran to the parked vehicle. Emily was left behind.
   Ely, Elseman, Patton, and Northrop left the scene in
Northrop’s vehicle. Elseman sent Emily a text message instruct-
ing her to go to a nearby restaurant where someone would pick
her up. The others went to Patton’s apartment. On the way
there, Patton stated that a bullet must have grazed him and
showed the others a bloody injury on his stomach. DNA test-
ing later showed blood found in Northrop’s car was a match
for Patton.
   Meanwhile, Brusha called the 911 emergency dispatch serv­
ice and was present at the scene when investigators arrived.
An investigating officer escorted Brusha to the police station
for an interview. As they drove, Brusha saw Emily walking
and identified her as a participant in the incident. Emily was
detained and taken to the police station.
   Emily had blood spatters on her shirt, leg, and shoes. She
initially was uncooperative, but eventually told investigators
what happened and showed them where Ely lived. Patton
was arrested on the morning of July 8, 2011. Northrop was
arrested on July 14. Northrop originally denied involvement,
but eventually confessed and implicated Ely, Elseman, Patton,
and Emily.
   Patton, Emily, and Northrop were all charged with first
degree murder. Emily and Northrop agreed to testify against
Patton, and many of the facts summarized here came into
evidence through their testimony. In addition, Cassandra
Moyers, Winters’ former girlfriend, testified that 2 days
before the robbery, she had been at a party with Ely, Elseman,
Patton, and Northrop. At that time, Patton asked Moyers to
help him devise a plan to rob Winters, who was a known
drug dealer.
   Patton was convicted and sentenced to life imprisonment on
the murder count and to 5 to 15 years’ imprisonment for use
of a deadly weapon to commit a felony. He filed this timely
appeal. Additional facts will be set forth in our discussion of
Patton’s specific assignments of error.
                        Nebraska Advance Sheets
	                               STATE v. PATTON	903
	                              Cite as 287 Neb. 899

                 II. ASSIGNMENTS OF ERROR
   Patton assigns, restated, renumbered, and consolidated, (1)
that the trial court violated his constitutional right to confront
the witnesses against him by limiting his cross-examination
of Emily, Northrop, and Moyers; (2) that the trial court vio-
lated his due process rights by precluding him from present-
ing evidence that the State had made tacit plea agreements
with Emily and Northrop; (3) that the State violated his due
process rights by failing to disclose it made such tacit plea
agreements; and (4) that the trial court erred in refusing to
receive evidence of prior robberies committed by Emily
and Elseman.

                  III. STANDARD OF REVIEW
   [1-3] An appellate court reviews de novo a trial court’s
determination of the protections afforded by the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution and
article I, § 11, of the Nebraska Constitution and reviews the
underlying factual determinations for clear error.1 The determi-
nation of whether procedures afforded an individual comport
with constitutional requirements for procedural due process
presents a question of law.2 When issues on appeal present
questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision of the
court below.3
   [4,5] The exercise of judicial discretion is implicit in the
determinations of relevancy under Neb. Evid. R. 403, Neb.
Rev. Stat. § 27-403 (Reissue 2008), and a trial court’s decisions
regarding them will not be reversed absent an abuse of discre-
tion.4 It is within the discretion of the trial court to determine
relevancy and admissibility of evidence of other wrongs or acts
under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum.

 1	
      State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012). See, also, State v.
      Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012).
 2	
      State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).
 3	
      State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013).
 4	
      State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
    Nebraska Advance Sheets
904	287 NEBRASKA REPORTS



Supp. 2012), and the trial court’s decision will not be reversed
absent an abuse of discretion.5
                         IV. ANALYSIS
                         1. Limitation of
                       Cross-Examination
   Patton contends the trial court violated his Sixth Amendment
right to confrontation when it limited his ability to cross-
examine three prosecution witnesses. Specifically, he argues
that the district court erred in restricting him from (1) cross-
examining Emily and Northrop about what sentence they
hoped to avoid by testifying against him and (2) question-
ing Moyers about the fact that she believed Winters’ family
blamed her for his death.
   [6-10] The right of a person accused of a crime to con-
front the witnesses against him or her is a fundamental right
guaranteed by the 6th amendment to the U.S. Constitution, as
incorporated in the 14th amendment, as well as by article 1,
§ 11, of the Nebraska Constitution.6 The functional purpose
of the Confrontation Clause is to ensure the integrity of the
factfinding process through the provision of an opportunity
for effective cross-examination.7 The right to confrontation
means more than merely being allowed to confront the wit-
ness physically.8 But the right is not unlimited, and only
guarantees an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way and
to whatever extent the defense may wish.9 When the object
of the cross-examination is to collaterally ascertain the accu-
racy or credibility of the witness, the scope of the inquiry

 5	
      State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
 6	
      State v. Stark, 272 Neb. 89, 718 N.W.2d 509 (2006); State v. Johnson, 255
      Neb. 865, 587 N.W.2d 546 (1998).
 7	
      State v. Stark, supra note 6; State v. Bjorklund, 258 Neb. 432, 604 N.W.2d
      169 (2000), abrogated on other grounds, State v. Mata, 275 Neb. 1, 745
      N.W.2d 229 (2006).
 8	
      State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996).
 9	
      Id., citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L.
      Ed. 2d 674 (1986).
                         Nebraska Advance Sheets
	                                STATE v. PATTON	905
	                               Cite as 287 Neb. 899

is ordinarily subject to the discretion of the trial court.10 An
accused’s constitutional right of confrontation is violated
when either (1) he or she is absolutely prohibited from engag-
ing in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness,
or (2) a reasonable jury would have received a significantly
different impression of the witnesses’ credibility had coun-
sel been permitted to pursue his or her proposed line of
cross-examination.11

                    (a) Cross-Examination of
                       Emily and Northrop
   Because there was limited physical evidence linking Patton
to the murder, the testimony of both Emily and Northrop was
an important part of the State’s case against him. Prior to trial,
the State filed a motion in limine to prevent Patton from asking
either Emily or Northrop what penalty he or she was seeking
to avoid by testifying against him. The trial court sustained the
motion, reasoning that because Patton, Emily, and Northrop
were all charged with first degree murder, allowing either
Emily or Northrop to testify about the possible penalty for that
crime would improperly alert the jury to the penalty Patton
faced if convicted.
   Patton was, however, permitted to cross-examine both Emily
and Northrop generally, and rather extensively, about their
decisions to testify against him. And both were also asked on
direct examination about their decision to testify. Specifically,
Emily, who was 15 years of age at the time of the murder,
testified on direct examination that she was charged with first
degree murder and that she had a “hope or an expectation” that
by testifying, she would “get [her case] dropped down to juve-
nile.” She explained, however, that she had not been “told that
that is going to happen for sure.”
   On cross-examination, Emily admitted that she was “trying
to save” herself and that to do that, she had to cooperate with

10	
      State v. Privat, supra note 8. See, also, State v. Banks, 278 Neb. 342, 771
      N.W.2d 75 (2009); State v. Stark, supra note 6.
11	
      Id.
    Nebraska Advance Sheets
906	287 NEBRASKA REPORTS



the prosecution. She also admitted that she had told lies to
protect herself when she was “in a corner.” She again testified
that she was charged with first degree murder and explained
that she understood that because of the felony murder rule,
whoever participates in a murder is charged with the murder.
She also testified on cross-examination that it was her under-
standing that if her case were transferred to juvenile court, she
would not go to prison and she would actually be “free and
clear” on her 19th birthday. She testified that her desire to get
her case transferred to juvenile court had been communicated
to the prosecutor only via her testifying against Patton and the
other defendants in the case. She admitted that “what happens”
to her is the “most important thing that’s going on” in her mind
and that “[w]hat happens” to her “depends in large part [on]
how” she testified.
   Northrop testified on direct that he was currently incarcer-
ated and was facing a first degree murder charge related to
Winters’ death. He stated he was testifying at Patton’s trial and
had testified before “[i]n hopes to get a deal.” On direct exami-
nation, he stated he had been promised “[n]othing” in return
for his testimony.
   On cross-examination, Northrop testified that when he gave
his initial statement to police, he wanted to minimize his own
involvement and maximize everyone else’s to “help [him]self
out.” He stated that he had told lies under oath and was try-
ing to “save” himself by testifying. He stated he was “hoping”
that he would get a benefit from the prosecution, because he
had testified against Patton and other persons charged with
Winters’ murder.
   Clearly, Patton was not absolutely prohibited from cross-
examining Emily and Northrop with respect to a prototypical
form of bias, namely, whether their testimony against Patton
was influenced by their desire to receive favorable treatment
from prosecutors in their pending murder cases. Thus, the ques-
tion before us is whether a reasonable jury would have received
a significantly different impression of the witnesses’ credibility
had counsel been permitted to carry the cross-examination one
                          Nebraska Advance Sheets
	                                STATE v. PATTON	907
	                               Cite as 287 Neb. 899

step further by inquiring as to the specific penalty they faced if
convicted of first degree murder.12
   We applied this test to a limitation on the cross-­ xamination
                                                     e
of a prosecution witness who had participated in the crime
charged in State v. Stark.13 The witness, Scott McNeill, testi-
fied that it was the defendant, Dennis Stark, who struck the
fatal blow to the victim’s head with a hammer. Stark testified
that it was McNeill who struck the blow. Stark was not per-
mitted to cross-examine McNeill regarding his fear of receiv-
ing the death penalty and, on appeal, contended that his right
to confrontation was thus violated. We found that Stark was
permitted to question McNeill about the reduction of charges
against him to second degree murder and his concern about
getting the death penalty without objection. We determined
that this cross-examination “was sufficient to support an
argument that McNeill had a motive to confess and testify
against Stark”14 and that thus, it could not be said that the
jury would have received a significantly different impression
of McNeill’s credibility had Stark been permitted to cross-
examine him more extensively about his fear of receiving the
death penalty.
   Stark is somewhat distinguishable from the instant case in
that neither Emily nor Northrop mentioned the specific penalty
for first degree murder at any point in their testimony. Patton
urges that we follow the reasoning of the Arizona Supreme
Court in State v. Morales.15 In that first degree murder case,
the key prosecution witness was a 15-year-old who had been a
principal participant in the crime and was testifying at the trial
pursuant to a plea agreement. The jury was told that pursuant
to the agreement, if the State found the testimony of “‘substan-
tial aid’” in its prosecution, it would withdraw its request to

12	
      See State v. Privat, supra note 8. See, also, State v. Banks, supra note 10;
      State v. Stark, supra note 6.
13	
      State v. Stark, supra note 6.
14	
      Id. at 100, 718 N.W.2d at 520.
15	
      State v. Morales, 120 Ariz. 517, 587 P.2d 236 (1978).
    Nebraska Advance Sheets
908	287 NEBRASKA REPORTS



transfer the witness’ then pending juvenile case to adult court
and the witness would enter an admission to the charge of
second degree murder in juvenile court.16 The jury was further
told that if this occurred, the witness would be subject to the
jurisdiction of the juvenile court only until he turned 21 years
of age. Defense counsel sought to introduce evidence that if
the witness’ case had been transferred to adult court, he would
have faced the possibility of death or life in prison, but the
trial court prevented counsel from doing so, reasoning such
evidence would alert the jury to the possible penalty faced by
the defendant before it. In reversing the conviction, the Arizona
Supreme Court held:
      Whatever merit [the trial court’s] reason may have, it can-
      not outweigh the right of the defendant to cross-examine
      the State’s major witness on what he expects in return for
      his testimony. The fact that the witness faced a possible
      death penalty if he did not testify for the State surely
      would be a factor if not the factor in the witness’s deci-
      sion to testify. The trial court’s refusal to allow inquiry
      into the penalty the witness would have faced had he not
      agreed to testify was reversible error.17
   There is authority in Nebraska for the general proposition
that jurors need not and should not be told of the punishment
faced by a defendant if convicted.18 We agree with the Arizona
Supreme Court that this principle should yield to the right of
a defendant to cross-examine a prosecution witness regarding
the penalty that he or she is avoiding or seeking to avoid by
testifying, even if such cross-examination necessarily discloses
the penalty faced by the defendant if convicted.
   But this case differs from Morales in three key respects.
First, Emily and Northrop did not face the death penalty.
Second, the jury learned of the potential life sentences Emily
and Northrop were facing from another witness. Third, both

16	
      Id. at 519, 587 P.2d at 238.
17	
      Id. at 520, 587 P.2d at 239.
18	
      See, State v. Nelson, 182 Neb. 31, 152 N.W.2d 10 (1967); State v.
      McDaniel, 12 Neb. App. 76, 667 N.W.2d 259 (2003). See, also, NJI2d
      Crim. 9.5.
                   Nebraska Advance Sheets
	                        STATE v. PATTON	909
	                       Cite as 287 Neb. 899

Emily and Northrop were extensively cross-examined about
the benefit they hoped to obtain by testifying.
   After both Emily and Northrop had testified, Omaha Police
Det. Dan Martin appeared as a prosecution witness. Martin
was cross-examined regarding his initial interview with Emily
following her arrest. He stated that Emily originally told
him that she had gone to Winters’ home to purchase mari-
juana, heard an altercation, and then left. Martin testified
that Emily changed her story and described the robbery
attempt after he told her that the others were saying she had
planned the robbery. This cross-examination included the fol-
lowing exchange:
         [Defense counsel:] And did you tell [Emily] what the
      consequences would be if she was — you know, if she
      was responsible for everything?
         [Martin:] Yes.
         Q. What did you tell her?
         A. So that she could be arrested just like everyone else.
      Life in prison.
         Q. Life in prison. So once you told her that she was
      facing that penalty, what did she do?
         A. She told me another version of her story.
Shortly after this, a sidebar conference was held during which
the prosecutor argued that “there should be no more mention”
of the penalty, and the court replied, “It came out. Now leave
it alone.” There was no motion to strike the testimony, and
the jury was not instructed to disregard it. However, at the
State’s request, the court directed defense counsel not to refer
to Martin’s testimony regarding the penalty in his closing argu-
ment. Nevertheless, Martin’s testimony informed the jury that
the penalty for first degree murder faced by Emily (and by
necessary implication, Northrop), was life imprisonment; that
Emily was aware of this fact long before she testified at trial;
and that she changed her story and incriminated Patton and
others after learning of the penalty she faced.
   In view of Martin’s testimony, and considering the cross-
examinations of Emily and Northrop in their entirety, we
cannot conclude that a jury would have received a signifi-
cantly different impression of their credibility if counsel had
    Nebraska Advance Sheets
910	287 NEBRASKA REPORTS



been permitted to elicit the fact that they faced life sentences
for first degree murder. It was abundantly clear from their
testimony that they were cooperating with the prosecution
in an attempt to obtain favorable treatment on their pending
charges, and for no other reason. Both admitted that they
were attempting to “save” themselves. Emily admitted that if
she did not have any hope of leniency, she would probably
not testify. When Northrop was asked if he found himself
in the position of “hav[ing] to testify for the prosecutors” in
order to achieve his goal of saving himself, he responded,
“Hopefully, yes.”
   Although Patton was not permitted to cross-examine Emily
and Northrop regarding the specific sentences they hoped to
avoid by testifying for the State, he was permitted to exam-
ine them regarding the specific benefit they hoped to obtain.
Emily understood that if her case were transferred to juvenile
court, she would not go to prison and would be “free and
clear” on her 19th birthday, when the juvenile court would
no longer have jurisdiction. She agreed that this would be
a “pretty good deal” and was hoping that it would happen.
Northrop, who had two prior felony convictions, testified that
he understood the difference in penalties for the four classes
of Nebraska felonies and was hoping that prosecutors would
allow him to plead guilty to an accessory offense, for which
he could receive as little as 1 or 2 years in prison. Even with-
out knowing the specific penalty for first degree murder, a
reasonable juror would understand from this testimony that
Emily and Northrop were hoping to obtain a substantial ben-
efit from their cooperation with the prosecution. And the jury
was instructed that it was the sole judge of the credibility of
the witnesses and could consider, among other things, “[t]heir
interest in the result of the suit, if any,” and “[t]heir apparent
fairness or bias . . . .”
   Because the jury learned of the penalty for first degree
murder from another witness and because Emily and Northrop
were cross-examined extensively on their motivation to obtain
leniency from the prosecution by testifying, a reasonable jury
would not have received a significantly different impression of
                          Nebraska Advance Sheets
	                                 STATE v. PATTON	911
	                                Cite as 287 Neb. 899

the witnesses’ credibility had defense counsel been permitted
to ask what specific penalty Emily and Northrop faced. There
was no violation of Patton’s confrontation right.

                     (b) Cross-Examination
                            of Moyers
   Moyers was Winters’ former girlfriend. She testified on
direct examination that 2 days before the robbery, Patton
asked her for information about where Winters kept his drugs
because Patton wanted to rob Winters. She also testified that
after her relationship with Winters ended in December 2010,
she remained friendly with his mother, explaining they were
together frequently and were “[a]lmost best friends.” Moyers
testified that she went to Winters’ home after she learned of the
shooting “[b]ecause I was really close to the family.”
   On cross-examination, Moyers was asked about her rela-
tionship with Winters’ family while she was dating him and
the frequency of her visits to the Winters’ home. When asked
about her relationship with Winters’ mother, she said it was
“good at the time.” Patton’s counsel then asked, “How is it
now?” The court sustained the State’s relevancy objection to
this question.
   At that point, there was a sidebar conference at which
Patton’s counsel argued he should be able to pursue his inquiry
because according to the deposition testimony of an unidenti-
fied witness, the Winters’ family blamed Moyers for Winters’
death, and this gave Moyers a motive to falsify or exagger-
ate her testimony against Patton. The prosecutor argued that
Moyers’ current relationship with Winters’ family was irrel-
evant. The court again sustained the objection. There was no
offer of proof.
   Because Patton was not completely prevented from cross-
examining Moyers regarding a possible bias stemming from
her relationship with Winters’ family, the restriction on cross-
examination must be assessed under the second prong of the
test in State v. Privat.19 Patton argues that Moyers believed

19	
      See State v. Privat, supra note 8.
    Nebraska Advance Sheets
912	287 NEBRASKA REPORTS



that Winters’ family blamed her for his death and that “this
belief, whether accurate or not, is a motive for the witness
to exaggerate her knowledge of the situation in an effort to
assuage the feelings of the Winters family.”20 This inference
is somewhat tenuous, and the record does not include any
evidentiary showing that Moyers held this belief. A stronger
                                                       ­
inference of Moyers’ potential bias against Patton can be
drawn from her testimony that she had a close relationship
with Winters’ family both during the time that she dated
Winters and after they broke up. This evidence gave Patton
a basis for arguing that Moyers had a personal bias in favor
of Winters’ family and thus a motive to assist the prosecu-
tion. We cannot conclude that a reasonable jury would have
had a significantly different impression of her credibility had
it known that Moyers believed that Winters’ family blamed
her for his death, and thus, there was no violation of Patton’s
confrontation rights.
                   2. Tacit P lea Agreements
   Patton contends that the State made tacit plea agreements
with Emily and Northrop whereby they would receive a reduc-
tion in charges and, in Emily’s case, a transfer to juvenile
court in exchange for their testimony. He contends that his due
process rights were violated by the trial court’s ruling that he
could not present evidence from the attorneys for Emily and
Northrop with respect to such agreements or an understanding
not to reach plea agreements prior to trial. And he contends
that the State’s failure to disclose the purported agreements
violated his due process rights as articulated in Brady v.
Maryland21 and United States v. Bagley.22
   [11,12] The existence of an agreement to testify by a wit-
ness under threats or promises of leniency made by the pros-
ecutor is relevant to the credibility of such witness, and failure
to bring that to the attention of the jury denies the defendant

20	
      Brief for appellant at 48.
21	
      Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
22	
      United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481
      (1985).
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	                              STATE v. PATTON	913
	                             Cite as 287 Neb. 899

due process of law.23 An expectation of leniency on the part of
a witness, absent evidence of any expressed or implied agree-
ment, need not be revealed to the jury.24

                     (a) Attorney Testimony
   As noted, both Emily and Northrop testified that they hoped
for favorable consideration from the State in exchange for their
testimony. Both also testified they had not been promised or
assured that they would receive it. In other words, both denied
that they had entered into any plea agreement with the State.
Patton contends that the State entered into tacit plea agree-
ments with both witnesses, which his counsel characterized as
a “wink and [a] nod at each other and say, we’ll take care of
you; we just don’t want to promise you anything.”
   To prove this claim, Patton sought to offer testimony from
the attorneys who were representing Emily and Northrop in
their pending first degree murder cases. In an offer of proof,
Emily’s attorney acknowledged that he had made repeated
efforts to persuade prosecutors to transfer Emily’s case to juve-
nile court and had filed a motion requesting the transfer, which
was pending. But he stated: “There’s never been an express
agreement that — or anything in writing or any deal that would
lead to [Emily’s] going to juvenile court.” He acknowledged
that “everything she does towards cooperation, at this point,
can only help her” and that it was his “expectation that she
will end up in juvenile court based on conversations I’ve had.”
He acknowledged that in some cases, he has reached a “tacit
agreement” with prosecutors with respect to a cooperating
codefendant. But when asked if he had a tacit agreement with
respect to Emily, he replied:
      Well, this is a little different because, again, usually I
      would know — I would be able to tell exactly what —
      when I take something to my client, I can tell them, this
      is how this is going to happen, this is when it’s going to
      happen. Again, there have been no promises or actual

23	
      State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. Rice,
      214 Neb. 518, 335 N.W.2d 269 (1983).
24	
      Id.
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914	287 NEBRASKA REPORTS



      agreements made in this case for how that’s going to
      be done.
Emily’s attorney testified that he was confident that her case
would be moved to juvenile court because of her cooperation,
age, and lack of a prior record, but stated, “I have not been
told by the prosecutor’s office she will be moved up to juve-
nile court.”
   In a narrative offer of proof, Patton’s counsel stated that
if called as a witness, Northrop’s counsel would testify that
he had conversations with a prosecutor but had received “no
specific agreement in writing or one that would be put on the
record, only that it would be considered . . . they would con-
sider lesser offenses, depending on how things came out.”
   The district court sustained relevancy objections to both
offers of proof. We find no error in this ruling. The attorneys’
testimony would not have impeached the testimony of Emily
and Northrop, because it was consistent with both witnesses’
testimony that they hoped for leniency in exchange for their
testimony, but had received no promises or assurances from
the State. Because the attorneys’ testimony fell short of estab-
lishing implied or “tacit” plea agreements benefiting Emily
and Northrop, it was irrelevant.
   Nor are we persuaded by Patton’s argument that the State
“opened the door” to the admissibility of the attorneys’ testi-
mony by eliciting from Emily and Northrop on direct exami-
nation that they had received no promises of leniency in
exchange for their testimony.25 The manner in which this
issue was initially raised at trial does not change the fact that
the proffered testimony of the attorneys does not contradict
or impeach the testimony of their clients that they had not
received any promise of leniency from the State in exchange
for their testimony.

                  (b) Brady/Bagley Failure
                         to Disclose
   In Brady v. Maryland, the U.S. Supreme Court held that
the prosecution has a duty to disclose all favorable evidence

25	
      See brief for appellant at 44.
                        Nebraska Advance Sheets
	                               STATE v. PATTON	915
	                              Cite as 287 Neb. 899

to a criminal defendant prior to trial.26 The Court clarified in
United States v. Bagley that impeachment evidence, as well
as exculpatory evidence, falls within the Brady rule.27 Patton
contends that the State failed to disclose tacit agreements with
Emily and Northrop which he could have utilized to impeach
their credibility.
   But as we have noted, the evidence in this record does not
establish the existence of tacit plea agreements between the
State and the two witnesses for the prosecution. Both testi-
fied that they hoped to obtain leniency in exchange for their
testimony but had not received any assurances or promises
from the State. In State v. Rice,28 a prosecution witness charged
with the same murder as the defendant testified that he chose
to testify because he felt things would go easier for him if he
did, but repeatedly denied that any deal had been struck with
the prosecution. We held that while this testimony established
that the witness had an expectation of leniency in exchange for
his testimony, it fell short of establishing an express or implied
promise by the State. We reach the same conclusion here.
   [13,14] For completeness, we note that Patton relies in part
on documents attached as an “Appendix” to his brief in support
of his argument that tacit plea agreements existed. These docu-
ments are not included in the bill of exceptions. A party’s brief
may not expand the evidentiary record.29 A bill of exceptions
is the only vehicle for bringing evidence before an appellate
court; evidence which is not made a part of the bill of excep-
tions may not be considered.30 Accordingly, we do not consider
these documents in our disposition of this issue.
                    3. Emily’s Involvement
                       in P rior Robberies
   Patton argues that the district court erred in sustaining the
State’s objection to the admission of evidence that Emily and

26	
      Brady v. Maryland, supra note 21.
27	
      United States v. Bagley, supra note 22.
28	
      State v. Rice, supra note 23.
29	
      State v. Rust, 247 Neb. 503, 528 N.W.2d 320 (1995).
30	
      State v. Williams, 253 Neb. 111, 568 N.W.2d 246 (1997).
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916	287 NEBRASKA REPORTS



Elseman had committed other home invasion robberies of drug
dealers in the months prior to the robbery and shooting of
Winters and that Patton was not involved in those robberies.
Prior to trial, the court sustained the State’s motion in limine
with respect to this evidence. In support of an offer of proof at
trial, Patton offered sworn testimony of Emily admitting that
she had participated in prior robberies with Elseman in which
Patton was not involved. Patton’s counsel stated that the evi-
dence was not offered to show propensity, but, rather, to show
that Emily and Elseman had been involved in prior similar
crimes in which Patton was not a participant, which was con-
sistent with Patton’s defense that he was not a participant in
the Winters robbery attempt.
   We agree with the district court’s determination, implicit
in sustaining the State’s objection, that the evidence was not
relevant for any legitimate purpose, including impeachment. In
addressing this identical issue in State v. Ely,31 which involved
another defendant convicted of Winters’ murder, we stated:
       [T]he fact that Emily and Elseman may have committed
       prior robberies without the knowledge or participation
       of Ely is irrelevant to any issue in this case. . . . The
       fact that Ely was not involved in prior unlawful con-
       duct has no bearing, one way or another, on the issue of
       whether he committed the crimes he was charged with in
       this case.
For the same reason, the evidence of prior home invasion rob-
beries committed by Emily and Elseman without the participa-
tion of Patton was inadmissible in this case.
                      V. CONCLUSION
   For the reasons discussed, we find no reversible error and
therefore affirm.
                                                  Affirmed.

31	
      State v. Ely, 287 Neb. 147, 155, 841 N.W.2d 216, 223-24 (2014).
