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State v. Dudney11/12/2002
the prosecution based on the parties' stipulation that the blood test conducted on Dudney was performed pursuant to the rules and regulations of the Department of Health and Human Services Regulation and Licensure. Defense counsel agreed that foundation was met for the admission of the exhibit and stated, "We would reserve the objections that we made previously and we would like to reserve the right to argue about the weight of this evidence." With those reservations, the blood test results were received by the court. It is not immediately apparent from the record which "previous" objections were being referred to by defense counsel.
A party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection.State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002). One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error. Id. The Nebraska Supreme Court has held that a motion for new trial on the ground of accident or surprise under Neb. Rev. Stat. § 29-2101 (Reissue 1995) is properly overruled when a request for a continuance on that ground was not made at or prior to trial. State v. Mills, 199 Neb. 295, 258 N.W.2d 628 (1977). We conclude that Dudney has waived any objection he might have had to the admission of Woods' testimony concerning Woods' observations of the field sobriety tests.
We briefly note, as did the district court in its review, that Dudney's attorney seems convinced that there were secret reports prepared in this matter that were not disclosed to the defense. The district court found no evidence that any such reports exist; nor do we find such evidence in our review of the record. Dudney again cites us in his brief to a nonexistent page in the transcript in support of his assertion that " onfidential police reports, on an unrelated case, were submitted for the Trial Court's review, as an attachment to the Affidavit in support of the Motion for New Trial[.]" Brief for appellant at 31. Even if such reports relating to an "unrelated case" were contained in the record of this case, we cannot see how they would be evidence that such reports were prepared in the present matter; nor would their existence require a new trial in the present matter. This contention is without merit.
Finally, we address Dudney's contention that he was forced to testify by remarks in the prosecution's opening statement. Dudney directs us to the following comment by the prosecutor, who stated, "Like I said earlier, I don't know what evidence, if any, [Dudney] has or what [the defense] might say in opening statement, but obviously there is a disagreement between the two sides or we wouldn't be here for a trial." Dudney asserts that these remarks raised issues about his right to remain silent and put pressure on Dudney to testify. We disagree with Dudney's assertion that the prosecutor was commenting on Dudney's right to remain silent. Rather, the prosecutor was stating the he did not know what the defense's evidence would be or what would be said during the defense's opening statement. Dudney did not object at the time that this statement was made. Thus, any error in the remarks was waived. See State v. Harms, supra. See, also, State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled on other grounds,State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). The county court did not err in denying Dudney's motion for new trial.
CONCLUSION
The district court did not err in affirming Dudney's conviction for DUI in the county court.
Affirmed.
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