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State v. Dudney11/12/2002
th regard to the written statement, he did not. He had the opportunity to use the statement for impeachment when the defense continued Monday's cross-examination following the noon recess. The record fails to reflect bad faith by the prosecution or prejudice to the defense from this alleged discovery violation.
As to the 911 tape, it appears from the record to have been recycled. Dudney asserts that "Monday fabricated most of the story she reported to Sheriff Jensen" and argues that the 911 tape could have provided invaluable information with which to impeach Monday. Brief for appellant at 20. However, the exculpatory value of the tape is not readily apparent, especially in reference to the DUI charge with which we are concerned in this appeal. The Nebraska Supreme Court has stated:
Under certain circumstances, the Due Process Clause of the 14th Amendment may require that the State preserve potentially exculpatory evidence on behalf of a defendant. California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). To meet the standard of constitutional materiality in such circumstances, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." 467 U.S. at 489. Additionally, it is uncontroverted that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). See State v. Tanner, 233 Neb. 893, 448 N.W.2d 586 (1989). The "presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Youngblood, 488 U.S. at 57 n.*. See, also, Tanner, supra. State v. Castor, 257 Neb. 572, 590, 599 N.W.2d 201, 214 (1999).
Dudney has failed to establish any exculpatory value in the 911 tape, and he has failed to show any bad faith by the prosecution or by law enforcement officials. As we can find nothing in the record to indicate that the failure to obtain the recording had an adverse impact, or any impact on Dudney's DUI conviction, and as Dudney was provided with Monday's written statement, declined to seek a continuance, and questioned Monday after having the opportunity to review the statement, Dudney's assignment of error is without merit.
Testimony of Officer Woods.
Dudney asserts that the county court erred by permitting law enforcement officials to offer opinions regarding whether Dudney was under the influence of alcohol and related matters. In his brief, Dudney addresses the testimony only of Woods, who observed the field sobriety tests administered to Dudney by Jensen. At trial, Woods was asked the following question: "And during your training, with reference to the administration of [the one-legged stand] test, did they train you what that is an indication of if a foot is placed down?" Dudney objected, arguing that Woods was not an expert in this area and should not be allowed to give an expert's opinion. The county court overruled the objection, stating that it believed Woods had not been called as an expert, but, rather, was asked to make his observations from his training. Woods went on to testify that he was taught that a foot's being placed down during this field sobriety test was an indication of impaired balance.
In its consideration of Dudney's appeal, the district court summarily overruled this assigned error. Before th
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