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State v. Dudney11/12/2002
ense.
Motion for New Trial.
Dudney asserts that the county court erred by denying his motion for new trial. Dudney asserts various "irregularities" in the proceedings below which he argues merit a new trial. We discuss below only those of Dudney's arguments that are not addressed elsewhere in this opinion.
Dudney first addresses the late disclosure of Woods' testimony and the prosecutor's alleged misrepresentation of the content of that testimony. In his brief, Dudney cites us to pages 33 and 78 of the transcript for a notice from the prosecution which allegedly stated that Woods' testimony would relate "only" to the taking of a blood sample. Brief for appellant at 28. However, the notice referred to by Dudney in his brief is not located at these transcript pages; nor have we been able to locate any such document elsewhere in the transcript. Dudney's counsel stated at the hearing on Dudney's motion for new trial that he had filed an affidavit with the motion, apparently addressing this issue. Although Dudney's motion for new trial does reference an affidavit, no such affidavit is contained in the transcript before us. The district court concluded, apparently based on the arguments made by Dudney at the motion for new trial, that while the testimony of Woods was disclosed late in the process of preparation for trial, the disclosures about Woods' testimony were accurate and sufficiently complete. The district court noted that a continuance might have been granted, but that none was requested, and found no prosecutorial misconduct with respect to Woods' testimony.
Clearly, the prosecutor was not required to disclose every detail of the testimony of the prosecution's witnesses. Neb. Rev. Stat. § 29-1912 (Reissue 1995), which provides for discovery in criminal matters, does not require that the substance of every witness' testimony be disclosed prior to trial, but does require disclosure of the "names and addresses of witnesses on whose evidence the charge is based."
Dudney asserts that he was taken by surprise by the substance of Woods' testimony and further asserts that had the defense known that a second officer was present during the administration of the field sobriety tests, the defense would have approached the admission of the blood test results differently. Dudney asserts that the defense stipulated to the admission of the blood test results based on its perception of Jensen's testimony regarding Dudney's intoxication as being weak. Dudney argues that the defense's attempted strategy to minimize the impact of the blood test was rendered relatively fruitless in light of Woods' "strong testimony regarding the field sobriety tests and impairment." Brief for appellant at 30. Dudney did not object to Woods' testimony on the basis of surprise; nor did he ask for a continuance at any point during the course of Woods' testimony, immediately thereafter, or at any point during his own presentation of evidence. Dudney's counsel engaged in both cross-examination and recross-examination of Woods, questioning him thoroughly about his recollection of the events of August 27, 2000, in the absence of a written report of his observations. At the close of Woods' testimony, defense counsel requested that Woods not be excused, but Dudney did not recall Woods during the presentation of his own evidence.
Although it is clear from defense counsel's comments during opening statements and shortly prior to Woods' testimony that the defense intended to stipulate to the admission of the blood test results, we note that the blood test results were not admitted into evidence until after Woods' testimony was complete. At that time, the blood test results were offered by
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