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State v. Vasquez1/21/2003
nt in front of the bar to the nearby building. When the officers arrived at the scene, they found Vasquez lying injured on the sidewalk outside the bar, with an oil or fluid spill nearby and motorcycle parts on the ground nearer the damaged building. Vasquez smelled of alcohol. We conclude that the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support an inference that Vasquez was physically handling the controls of the motorcycle while under the influence of intoxicating liquor. Accordingly, the district court did not err in denying Vasquez' motion to dismiss.
Motion for Mistrial.
Vasquez asserts that the district court erred in failing to declare a mistrial based upon possible juror bias. One of the issues at trial in this case was the credibility of Steinmark, relating to whether Vasquez was operating the motorcycle. Vasquez' claim of juror bias stems from the following testimony by Steinmark: "Q Mr. Steinmark, have you previously talked to Mr. Jorgensen about your testimony here today? A That's it. Q That's Mr. Vasquez's attorney? A I talked to him one time. Q When was that? A Last Thursday Wednesday. I don't know for sure." Subsequently to both Steinmark and Sesna's testimony, a juror notified the court that she had observed Steinmark speaking to Vasquez and Vasquez' counsel while she was waiting for jury selection. The juror stated that Vasquez, Vasquez' counsel, and Steinmark left the courtroom to talk outside. The juror overheard only the words "'this is how.'" The juror was examined by both the court and Vasquez' counsel and made it clear that she would not share the information with the other jurors and that she did not feel that Vasquez or his counsel had done anything wrong. The juror stated that she could disregard what she had seen and not consider it in her judgment of Steinmark's credibility.
Vasquez argues that the juror could not have helped being biased by what she witnessed, especially where Steinmark's credibility was a crucial issue to Vasquez' defense. Nebraska case law indicates that a juror is not required to be excused from a jury and a mistrial not be declared when the juror is able to decide the case fairly and impartially. State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998). However, the juror must be excused or a mistrial declared when a juror cannot be fair and impartial. Id. Given the juror's indication of her ability to fairly judge Steinmark's credibility without regard to what she had witnessed, we find that the district court did not abuse its discretion in overruling Vasquez' motion for a mistrial.
Admission of Test Results.
Vasquez asserts that the district court erred in receiving the test results showing his blood alcohol content. Vasquez argues that the State failed to show, as required by title 177, that the techniques and methods required for such testing were complied with; that the "spot check" requirement set forth in State v. Hiemstra, 6 Neb. App. 940, 579 N.W.2d 550 (1998), were complied with; and that 177 Neb. Admin. Code, ch. 1, § 006.06D (1998), was complied with, as no evidence was offered to show that maintenance on the instrument used to test his blood had occurred with the recommended frequency. Vasquez relies onHiemstra in support of his arguments.
In Hiemstra, the defendant argued that the trial court erred in admitting his blood test results because the requirements of 177 Neb. Admin. Code, ch. 1, § 006.04D (1990), were not satisfied. The defendant's argument was twofold. First, the defendant argued that the State failed to prove that the reagent pack used with the instrument in which his blood was tested was properly refrigerated. Sec
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