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State v. Dudney11/12/2002
now. You must be convinced, as [counsel] indicated, beyond a reasonable doubt before [Dudney] can be convicted on either of the two charges." Further, during its final instructions to the jury, the trial court again explained, " defendant is presumed to be innocent. This presumption of innocence is evidence in favor of the defendant and continues throughout the trial until he or she shall have been proved guilty beyond a reasonable doubt."
We agree with the assessment made by the district court that the prosecutor's comments regarding the presumption of innocence could have been more artfully made; however, given the context of the entire record, we cannot say that they materially influenced the jury in reaching its verdict on the DUI charge, and therefore, they do not constitute reversible error. In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant. State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). The jury was correctly instructed concerning the presumption of innocence by the trial court in both its preliminary and its final instructions. The trial court did not err in overruling Dudney's objections to the prosecutor's remarks concerning the presumption of innocence.
Discovery of 911 Tape and Monday's Written Statement.
Dudney next asserts that the trial court erred by failing to grant relief to the defense for the prosecution's failure to provide court-ordered discovery items, which included Monday's written statement and an audiotape of the call Monday placed to the 911 emergency dispatch service (911 tape). At trial, when Monday first testified that she provided a written statement to Jensen of what happened on the night in question, the parties' attorneys had a discussion with the court outside the presence of the jury. Dudney's attorney indicated that he had never received a copy of this written statement and objected to its not having been previously provided to him. The prosecutor indicated his recollection that the statement had been included as a part of the discovery items provided to the defense. The court noted Dudney's objection, directed the county attorney to make a copy of the statement available to Dudney over the noon recess, and told Dudney's attorney that he could make any motion he wanted on the resumption of trial. When trial resumed after the noon recess, Dudney's attorney made an objection "for the record" to the prosecution's providing the statement "late in this case." The court again noted the objection but made no specific ruling. The written statement was eventually offered as an exhibit by Dudney's attorney during his examination of Monday and was received into evidence by the trial court.
With regard to the 911 tape, Dudney's attorney indicated during his cross-examination of Jensen that the defense had requested a copy of the 911 tape and was told that the sheriff's office no longer had it. Jensen responded that this would not surprise him, as his office recycles such tapes after a certain period.
In his brief on appeal, Dudney does not indicate what further relief the court should have provided him in this situation. He merely asserts, without further argument, that the prosecution's failure to provide timely discovery violated his due process rights. When a continuance will cure the prejudice caused by belated disclosure of evidence, a continuance should be requested by counsel and granted by the trial court. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002). Although Dudney could have moved for a continuance wi
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