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Nebraska Court of Appeals Advance Sheets

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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

State of Nebraska, appellee, v. 

Andrew D. Williams, appellant.

___ N.W.2d ___

Filed October 30, 2018. No. A-17-877.

1. Criminal Law: Pretrial Procedure. Discovery in a criminal case is 

generally controlled by either a statute or court rule.

2. ____: ____. Neb. Rev. Stat. §§ 29-1912 and 29-1913 (Reissue 2016) set 

forth specific categories of information possessed by the State which are 

discoverable by a defendant.

3. ____: ____. Neb. Rev. Stat. § 29-1916 (Reissue 2016) provides only 

reciprocal discovery to the State as to orders for discovery entered pursuant to Neb. Rev. Stat. §§ 29-1912 and 29-1913 (Reissue 2016).

4. ____: ____. A motion for deposition is filed pursuant to Neb. Rev. Stat. 

§ 29-1917 (Reissue 2016). However, unlike general discovery, a motion 

for deposition can be filed by either party to a criminal case.

5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for 

clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to admit 

evidence over a hearsay objection.

6. Rules of Evidence: Hearsay: Proof. Hearsay is an out-of-court statement made by a human declarant that is offered in evidence to prove the 

truth of the matter asserted.

7. Rules of Evidence: Hearsay. Generally, hearsay is inadmissible except 

as provided by a recognized exception to the rule against hearsay.

8. Trial: Evidence: Testimony: Proof. Demonstrative exhibits are admissible if they supplement a witness’ spoken description of the transpired 

event, clarify some issue in the case, and are more probative than 

prejudicial.

9. Trial: Evidence. Demonstrative exhibits are inadmissible when they do 

not illustrate or make clearer some issue in the case.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/30/2018 09:11 AM CDT
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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

10. Trial: Judges: Juries: Evidence. A trial judge may exercise his or her 

broad discretion to allow or disallow the use of demonstrative exhibits 

during jury deliberations.

11. Convictions: Evidence: Appeal and Error. Even if admitted in error, 

where the evidence is cumulative and there is other competent evidence 

to support the conviction, the improper admission or exclusion of evidence is harmless beyond a reasonable doubt.

12. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

13. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

14. Hearsay. If an out-of-court statement is not offered for the purpose of 

proving the truth of the facts asserted, it is not hearsay.

15. Trial: Hearsay. A trial court should identify the specific nonhearsay 

purpose for which the making of a statement is relevant and probative.

16. Trial: Appeal and Error. An error is harmless when cumulative of 

other properly admitted evidence.

17. Trial: Jurors. Retention or rejection of a juror is a matter of discretion 

with the trial court.

18. Trial: Motions to Dismiss: Jurors: Appeal and Error. The standard 

of review in a case involving a motion to dismiss a juror is whether the 

trial court abused its discretion.

19. Juror Qualifications. Through the use of peremptory challenges or 

challenges for cause, parties can secure an impartial jury and avoid 

including disqualified persons.

20. ____. Jurors who form or express opinions regarding an accused’s guilt 

based on witness accounts of the crime must be excused for cause. 

However, jurors whose source of information is from newspaper reports, 

hearsay, or rumor can be retained if the court is satisfied that such 

juror can render an impartial verdict based upon the law and the evidence adduced.

21. Jurors: Appeal and Error. The erroneous overruling of a challenge 

for cause will not warrant reversal unless it is shown on appeal that an 

objectionable juror was forced upon the challenging party and sat upon 

the jury after the party exhausted his or her peremptory challenges.

22. Motions to Strike: Jurors: Appeal and Error. Appellate courts ought 

to defer to the trial court’s judgment on a motion to strike for cause, 

because trial courts are in the best position to assess the venire’s 

demeanor.
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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

23. Jurors: Proof: Appeal and Error. The complaining party must prove it 

used all its peremptory challenges and would have used a challenge to 

remove other biased jurors if not for the court’s error.

24. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently 

of the trial court’s determination.

25. Motions to Suppress: Confessions: Constitutional Law: Miranda 

Rights: Appeal and Error. In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including 

claims that it was procured in violation of the safeguards established 

by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 

S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a 

two-part standard of review. With regard to historical facts, an appellate 

court reviews the trial court’s findings for clear error. Whether those 

facts suffice to meet the constitutional standards, however, is a question of law which an appellate court reviews independently of the trial 

court’s determination.

26. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.

When a motion to suppress is denied pretrial and again during trial on 

renewed objection, an appellate court considers all the evidence, both 

from trial and from the hearings on the motion to suppress.

27. Motions to Suppress: Courts: Records. District courts shall articulate 

in writing or from the bench their general findings when denying or 

granting a motion to suppress.

28. Constitutional Law: Search and Seizure. The Fourth Amendment to 

the U.S. Constitution and article I, § 7, of the Nebraska Constitution 

protect individuals against unreasonable searches and seizures.

29. Arrests: Search and Seizure: Probable Cause. An arrest constitutes a 

seizure that must be justified by probable cause to believe that a suspect 

has committed or is committing a crime.

30. Criminal Law: Warrantless Searches: Probable Cause. Probable 

cause to support a warrantless arrest exists only if law enforcement has 

knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, that would cause a reasonably 

cautious person to believe that a suspect has committed or is committing a crime. Probable cause is a flexible, commonsense standard that 

depends on the totality of the circumstances.
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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

31. Probable Cause: Appeal and Error. An appellate court determines 

whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.

32. Miranda Rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 

L. Ed. 2d 694 (1966), adopted a set of safeguards to protect suspects 

during modern custodial interrogations.

33. Constitutional Law: Arrests: Miranda Rights: Words and Phrases.

A person is in custody for purposes of Miranda v. Arizona, 384 U.S. 

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), when formally arrested or 

otherwise restrained so as to be unable to move freely. It is undisputed 

that a person who is handcuffed and placed in a police cruiser’s back 

seat is in custody.

34. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.

An interrogation includes express questioning, its functional equivalent, 

and any police conduct that police officers ought to know is reasonably 

likely to elicit incriminating responses. An arrestee’s voluntary statements, which are not the product of interrogation, are not protected 

under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966).

35. Miranda Rights: Self-Incrimination. When a custodial interrogation 

occurs in the absence of Miranda-style procedural safeguards, an arrestee’s self-incriminating statements are inadmissible in court.

36. Criminal Law: Confessions: Appeal and Error. In determining 

whether the State has shown the admissibility of custodial statements by 

the requisite degree of proof, an appellate court will accept the factual 

determination and credibility choices made by the trial judge unless 

they are clearly erroneous and, in doing so, will look to the totality of 

the circumstances.

37. Trial: Evidence: Juries: Appeal and Error. Erroneous admission of 

evidence is a harmless error and does not require reversal if the evidence 

is cumulative and other relevant evidence, properly admitted, supports 

the finding by the trier of fact. The proper inquiry is whether the trier of 

fact’s verdict was certainly not attributable to the error.

38. Miranda Rights: Arrests: Self-Incrimination. Courts must consider 

whether a Miranda warning, when given after an arrestee has already 

made incriminating statements, is sufficient to advise and convey that 

the arrestee may choose to stop talking even though he or she has spoken before the warning was administered.

39. Miranda Rights. The threshold issue when interrogators question 

first and warn later is thus whether it would be reasonable to find 

that in these circumstances the warnings could function effectively as 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966), requires.
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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

40. Miranda Rights: Evidence. To determine whether a midinterrogation 

Miranda warning is sufficient to warrant the admission of post-Miranda

statements, courts should consider five factors: the completeness and 

detail of the questions and answers in the first round of interrogation, 

the overlapping content of the two statements, the timing and setting of 

the first and second, the continuity of police personnel, and the degree 

to which the interrogator’s questions treated the second round as continuous with the first.

41. Miranda Rights. In instances of midinterrogation Miranda warnings, 

violations must include an inculpatory prewarning statement that somehow overlaps with statements made in the postwarning interrogation.

Appeal from the District Court for Douglas County: Duane

C. Dougherty, Judge. Affirmed.

Bell Island, of Island Law Office, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Moore, Chief Judge, and Bishop and Arterburn, Judges.

Arterburn, Judge.

I. INTRODUCTION

Andrew D. Williams appeals from his convictions after a 

jury trial in the district court for Douglas County of two counts 

of driving under the influence causing serious bodily injury. 

On appeal, he argues the court erred in rulings regarding evidentiary issues, excusing a prospective juror for cause, and 

denying pretrial motions to suppress. For the reasons set forth 

below, we affirm.

II. BACKGROUND

1. Accident

On the evening of February 26, 2016, Williams’ pickup truck 

collided with a car near the intersection of 52d and Parker 

Streets in Omaha, Nebraska. Kyle Phillips, Erin Sorenson, and 

Nathaniel Wissink were in the car when it was hit.
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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

Phillips, who testified that he drives through the area on 

a near-daily basis, described 52d and Parker Streets as a 

T-intersection in which a driver on Parker Street faces uphill. 

From this perspective, a driver has a clear line of sight to 

the right, or north, but when looking to the left, or south, on 

52d Street, can see for only a block or block and a half as 

a hill crests when 52d Street intersects near Decatur Street. 

Accordingly, Phillips testified that oncoming cars traveling on 

52d Street from the south would not be visible from the intersection in question until the hill’s crest.

On February 26, 2016, Phillips was accompanied by Wissink 

in the front passenger seat and Sorenson in the rear passenger seat as he drove westbound on Parker Street up the hill. 

Phillips testified that it was dark at about 6:45 or 7 p.m. when 

he stopped at the stop sign at the intersection of 52d and Parker 

Streets. After seeing no cars approaching from the left or the 

right, he pulled into the intersection and began to turn left 

when his car was “struck just . . . so fast that there was no time 

to comprehend anything” from the left while approximately 

halfway in the intersection.

During trial, the State elicited testimony from a number of 

neighbors who heard the accident and quickly arrived at the 

scene. Andrew Hale was sitting in his home on 52d Street 

and heard a vehicle approaching from the south at “what 

[he] thought would be a high rate of speed.” The vehicle 

accelerated without stopping, sounding as if “somebody had 

pushed on the gas pedal.” Hale testified that the vehicle continued accelerating until he heard a crash a few seconds after 

it passed his house. At no point did Hale hear the vehicle 

brake. When Hale got outside and saw there had been a crash, 

he called the 911 emergency dispatch service and spoke to 

the dispatcher.

Brett Bailes, who lived at the corner of 52d and Parker 

Streets, testified that he felt an explosion that shook his front 

door and saw a fireball go up into the trees. He ran outside 

and up to the car and immediately encountered Sorenson, who 
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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

had come out of the car and was engulfed in flames. Bailes 

took off his hooded sweatshirt, put it over her, and tackled 

her to the ground in order to smother out the flames with 

his body.

Bailes testified that once the flames engulfing Sorenson 

were extinguished, he noticed that Sorenson’s face had significant burns and that much of her hair was gone. He further 

described that the jacket and jeans she was wearing appeared 

to be “melted into her skin”: “You couldn’t tell where skin and 

where clothing stopped and started.” Bailes next noticed that 

Phillips, who was limply hanging out the car and beginning 

to regain consciousness, was being helped out of the car by 

another neighbor who lived on Parker Street and went outside 

after hearing “a very large, loud sound, kind of indescribable, 

extremely-violent-and-loud-explosion kind of a sound” and 

seeing a vehicle in flames.

Sorenson indicated there had been three people in the car, 

so Bailes and two neighbors ran back to the car that was completely engulfed in flames and found Wissink unconscious in 

the front passenger seat. Bailes testified that the car was split 

in half and appeared to be melting by that point; the front passenger door was “creased in” and would not open.

The three neighbors attempted to extricate Wissink from the 

car but struggled because his leg was pinned by the door and 

dashboard. Bailes said the back of Wissink’s jeans were on fire 

and were “melting to him” by that point. Eventually, Bailes 

leaned in through the driver’s window and freed Wissink’s 

leg, enabling his two neighbors to pull Wissink out the front 

passenger window. Wissink remained unconscious when they 

laid him in the yard beside Sorenson and Phillips. Paramedic 

firefighters arrived shortly thereafter.

Bailes and one of the neighbors ran toward the pickup 

truck, which was near 52d and Blondo Streets, to see if anyone needed help. No one was in the pickup truck, however, 

and Bailes said he saw no one around who may have been the 

driver. Bailes testified that he observed “a plethora of beer cans 
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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

of Bud Light cans and Budweiser cans all along the street.” He 

never saw anyone associated with the pickup truck.

On cross-examination, Bailes said that “you can see [south] 

one and a half or two blocks” from the intersection of 52d and 

Parker Streets. He also estimated that there were probably 12 

to 15 beer cans in the street.

Jason Orduna, a paramedic firefighter, testified that he rode 

in the first vehicle out of the station, an ambulance, and that 

he could see the fiery car from approximately six blocks 

away. Various bystanders and neighbors had assembled by the 

time he arrived at the scene and directed him to the victims 

in the nearby yard. After speaking with Sorenson and briefly 

examining her wounds and also conversing with Gregory 

Hladik, another paramedic firefighter, Orduna determined that 

Sorenson was the most critically wounded victim. Hladik also 

testified that Sorenson was more severely injured than Phillips. 

As Orduna treated Sorenson, Hladik treated Phillips. Together, 

they transported Sorenson and Phillips via ambulance to a 

medical center, arriving there at 7:41 p.m. Upon arrival at the 

medical center, Orduna and Hladik transferred care to the 

medical center personnel.

 Omaha Police Department officers, Mark Blice and Grant 

Gentile, were dispatched to the scene as well. They first 

observed a pickup truck on its side about a block away from a 

car that was engulfed in flames and virtually split in half. They 

also observed several unopened beer cans and ice in the road 

along with coolers in the back of the pickup truck. After ensuring no occupants remained in either vehicle, Blice and Gentile 

began separately speaking with potential witnesses who had 

gathered near the scene.

Witnesses told Blice that they observed the pickup truck 

driver exit his vehicle and walk away. They described the 

pickup truck driver as a white man who had short hair and 

wore blue jeans. As Blice continued speaking with witnesses, 

they identified a man walking around behind him as the pickup 

truck driver. That man was thereafter identified as Williams.
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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

Blice made contact with Williams and observed that he 

appeared disoriented, smelled of alcohol, and exhibited slurred 

speech and watery eyes. When Blice asked Williams if he 

was the pickup truck driver, Williams confirmed that he was. 

Williams also matched the physical description given by witnesses. Blice then handcuffed Williams and placed him in the 

back seat of his police cruiser.

Without first administering a Miranda warning, Blice proceeded to briefly question Williams. In particular, Blice asked 

Williams what had happened, where he was going, and what 

he was doing when the accident occurred. Williams answered 

that he was traveling northbound on 52d Street when someone 

pulled out in front of him. Williams told Blice that he was 

unable to stop before hitting the car, and he acknowledged that 

he was traveling too fast.

Contemporaneous with Blice’s speaking to witnesses and 

locating Williams, Gentile spoke with the victims who were 

being treated in a nearby yard prior to transport. Later medical examinations and treatment showed that Sorenson suffered 

second degree burns to her face and hands, a lung contusion, 

a small collapse of her lung, multiple broken ribs, and a ruptured spleen. Phillips sustained a cervical spine fracture near 

his lower neck or upper back. Meanwhile, Wissink suffered a 

concussion and a “bone dent” to his right femur.

After speaking with the three victims, Gentile approached 

Williams, who was at that time handcuffed and seated in the 

back of the police cruiser. Gentile asked Williams whether 

he was injured or needed medical attention, which Williams 

declined. During their conversation, Gentile noticed the strong 

odor of alcoholic beverage on Williams’ person and further 

observed that his speech was thick and slurred.

2. Jail Transport

Blice and Gentile transported Williams to the police station. 

While transporting Williams, Blice asked him for the information of an emergency contact person as was Blice’s routine 
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procedure while transporting someone. Williams provided the 

name and telephone number of his wife. Records show that 

Williams entered the police station at approximately 8:15 p.m. 

on February 26, 2016. Upon arrival, Blice and Gentile took 

Williams into a room designated for breath testing and read 

him a “Post Arrest Chemical Test Advisement,” which advised 

Williams he had been arrested for driving under the influence 

and requested that he submit to a breath test. Blice also began 

observing Williams as part of the test and readied paperwork, including a driving under the influence supplementary 

report and field notes, which includes a Miranda rights advisory. Williams agreed to answer questions after being read 

the advisory.

Blice asked Williams whether he was driving, had been 

drinking earlier, and felt his drinking impaired his driving. 

Williams responded affirmatively to each question. When Blice 

asked Williams what signs of intoxication he thought he presented, Williams responded, “too many beers.” Blice then 

asked about where Williams was going (“home”) and from 

where he was coming (“work”). Williams articulated an understanding of where he was traveling and knew roughly what 

time it was.

Upon being asked, Williams acknowledged he had six 

beers at work from around 3 to 6:45 p.m. Williams again 

confirmed he was not injured. Blice ended the interview 

around 8:39 p.m. by asking whether there was anything else 

Williams would like documented. Williams said he noticed 

beer cans on the street and wanted it documented that those 

did not belong to him. Thereafter, Williams was administered 

a breath test via a DataMaster machine and registered a score 

of .134.

Blice testified that he continued noticing signs of Williams’ 

intoxication throughout the time he transported him to the 

police station and interviewed him. In particular, Williams’ 

“thick speech” and watery eyes persisted, as did the odor of 

alcoholic beverage. Based on his observations throughout the 
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day, Blice opined that Williams was under the influence of 

alcohol to an extent that it impaired his driving.

On cross-examination, Blice acknowledged that Williams 

did not exhibit many other factors indicating intoxication. 

Williams was not unsteady or swaying while he walked. He 

was cooperative in answering questions and respectful toward 

officers. Blice also acknowledged that he did not perform standard field sobriety tests on Williams. This was due, in part, to 

Blice’s concern that the results might be affected by any injuries Williams sustained in the accident.

While at the police station, Williams made eight separate 

telephone calls, all to the same telephone number, which was 

later identified as belonging to his wife. Not all of the calls 

were completed or lasted very long, however. The telephone 

call system begins with an automated voice that advises the 

call is subject to being monitored and recorded. Williams’ 

first call occurred around 11:30 p.m. During the calls, the 

couple discussed the accident in general terms, his intoxication 

level, the charges, the victims’ conditions, bond, and whether 

he would be in jail over the weekend. Williams also told his 

wife he had been driving over the speed limit and was driving recklessly.

3. Pretrial

Williams was charged with two counts of driving under the 

influence causing serious bodily injury, each being a Class 

IIIA felony. Williams entered pleas of not guilty.

Before this matter proceeded to trial, Williams filed a series 

of motions to suppress. In his first two motions, Williams 

alleged that officers collected evidence from him following 

his arrest made without a warrant and without probable cause, 

thus violating his constitutional protections under the Fourth 

Amendment. He also alleged that any statements taken from 

him should be suppressed as a product of an illegal arrest 

and because he did not knowingly and intelligently waive his 

Miranda rights.
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STATE v. WILLIAMS

Cite as 26 Neb. App. 459

The court received testimony from Blice and Gentile and a 

Douglas County “911 audio tech.” The court denied Williams’ 

motion to suppress by an order dated November 1, 2016, finding the officers’ actions did not violate Williams’ constitutional 

rights. The court found the officers had probable cause to 

arrest Williams and “take the actions they did” thereafter.

On May 25, 2017, Williams filed a “Motion in Limine/

Motion to Suppress” results of the breath test administered 

upon his arrest. On the same date, he filed a motion in limine 

to prevent the State from making any mention of (1) statements he made at the jail and (2) a written report which stated 

that the DataMaster machine was in proper working order 

at the time he was tested. The State filed a motion in limine 

seeking to prohibit Williams from calling an identified expert 

witness to testify. The court heard these motions on June 9 

and denied Williams’ motions by orders filed June 13. As 

to the State’s motion, the district court required Williams to 

make disclosures to the State regarding Robert Belloto, Jr., 

an expert witness who would testify regarding issues with the 

DataMaster machine.

4. Trial

This matter then proceeded to a jury trial, which was held 

June 19 through 23, 2017. During trial, the State called 23 

witnesses, which included Blice and Gentile, other emergency 

responders, other law enforcement personnel, the jail’s telephone system administrator, an accident reconstructionist, the 

three victims, the victims’ treating physicians, and various 

neighbors and bystanders from the accident scene. Williams 

called one witness, Belloto.

During trial, Blice and Gentile described their observations 

of the accident scene and Williams, and they detailed their conversations and questioning of Williams. Emergency responders 

and other law enforcement personnel likewise described the 

accident scene, and paramedic firefighters discussed the victims’ injuries. The victims’ treating physicians further detailed 
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the victims’ particular injuries. Other law enforcement personnel and the jail’s telephone system administrator described 

their observations of Williams while he was at the police station, which aligned with Blice’s and Gentile’s descriptions.

The State’s accident reconstruction expert was Richard Ruth, 

who specialized in the use of “automobile event data recorders” to understand the manner in which a vehicle operated just 

before a crash. Ruth testified regarding the information that is 

captured by an “air bag control module” and an “event data 

recorder,” and he also performed calculations of speed based 

on “inline momentum analysis” and “postcrash travel.” In particular, he analyzed the data provided by the data recorder from 

Williams’ pickup truck.

Based on all of the information available to him, Ruth testified that Williams was traveling between 63.1 and 78.6 miles 

per hour at the time of impact. The data recorder revealed that 

the accelerator of the pickup truck was depressed almost to the 

maximum until 2.4 seconds prior to impact. Williams’ accelerator pedal was released, and the brake applied between 2.4 

and 1.4 seconds before impact. Ruth estimated that the pickup 

truck would have slowed down by approximately 18 miles 

per hour between the application of the brakes and impact. 

Williams’ pickup truck traveled for 246 feet after the crash 

impact. A number of Ruth’s calculations and summaries were 

received, including exhibits 139 through 141, 143 through 147, 

and 150.

Later, during Williams’ case in chief, he called Belloto, 

a pharmacist who has expertise related to the DataMaster 

machine. Belloto reviewed records and repair reports related 

to the DataMaster machine used to test Williams’ breath. He 

said that multiple breath tests ought to be administered to the 

same person in order to avoid false positives caused by gastric 

reflux, breath spray that contains alcohol, radio interference, or 

the machine beginning to fail.

Belloto testified about his concerns with the DataMaster 

machine used to test Williams because there was no indication 
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that Williams’ test was “bookend[ed]” by tests of known 

substances that would show the machine was still working 

properly. Moreover, Belloto was concerned with the machine’s 

multiple repairs and eventual replacement. Belloto was further 

concerned that Williams’ blow was unusually long at 50 seconds because longer blows into the machine cause a “spike” 

and registers higher scores. During cross-examination, however, Belloto acknowledged that Williams’ breath test result 

was a .12 after 15 seconds of blowing and only increased to 

.134 by the end of his 50-second blow.

Following Belloto’s testimony, Williams rested, and the 

State offered no rebuttal evidence. The jury thereafter returned 

guilty verdicts on both counts of driving under the influence 

causing serious bodily injury. Williams was sentenced to 3 

years’ imprisonment on count 1 and 2 years’ imprisonment on 

count 2. Additionally, Williams was sentenced to 9 months’ 

postrelease supervision with regard to each conviction, and 

Williams’ driver’s license was revoked for 3 years with regard 

to each conviction. The sentences were ordered to run consecutive to each other.

Williams appeals.

III. ASSIGNMENTS OF ERROR

Williams assigns, restated and renumbered, that the district court erred in (1) ordering him to disclose the opinions, 

facts, and data of Belloto, an expert witness; (2) admitting 

the opinions and summaries of a State’s expert over objection; (3) admitting jailhouse telephone calls over objection; 

(4) not striking a prospective juror for cause; and (5) denying 

his motions to suppress his arrest and the statements he gave 

before and after receiving a Miranda warning.

IV. ANALYSIS

1. Disclosure of Expert Opinion

Williams first assigns that the district court erred by sustaining in part a motion in limine filed by the State seeking 
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to preclude Williams from calling Belloto as a witness. At 

the hearing on the motion, the prosecutor alleged that shortly 

before the scheduled trial, he was provided a copy of Belloto’s 

resume by defense counsel. The prosecutor then contacted 

one of Williams’ attorneys and asked whether Belloto would 

testify and if so, whether a report of his opinions would be 

forthcoming. According to the prosecutor, he was told that 

no report existed to date. As such, the motion was filed seeking an order that would preclude Belloto from testifying or, 

in the alternative, require Williams to disclose the underlying 

facts and data supporting any opinions he might give. The 

district court sustained the motion in part, requiring Williams 

to either provide the State a copy of any report prepared by 

Belloto, make Belloto available for inquiry or deposition, or 

provide a written narrative report that contained a complete 

explanation of Belloto’s substantive testimony. On June 15, 

2017, defense counsel provided the State a one-paragraph letter 

which identified the topics that Belloto would testify about and 

the materials upon which his testimony would be based. The 

letter does not provide any information on what opinions or 

conclusions Belloto would include in his testimony. The State 

argues the court did not err in requiring Williams to provide the 

ordered information regarding Belloto’s expected testimony. 

Alternatively, the State argues that if the district court erred in 

its requirements, such error was harmless. Finding no error by 

the district court, we affirm.

[1,2] Discovery in a criminal case is generally controlled 

by either a statute or court rule. State v. Henderson, 289 Neb. 

271, 854 N.W.2d 616 (2014). Neb. Rev. Stat. §§ 29-1912 and 

29-1913 (Reissue 2016) set forth specific categories of information possessed by the State which are discoverable by a 

defendant. Neb. Rev. Stat. § 29-1916 (Reissue 2016) provides 

in part:

(1) Whenever the court issues an order pursuant to the 

provisions of sections 29-1912 and 29-1913, the court 

may condition its order by requiring the defendant to 
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grant the prosecution like access to comparable items 

or information included within the defendant’s request 

which:

(a) Are in the possession, custody, or control of the 

defendant;

(b) The defendant intends to produce at the trial; and

(c) Are material to the preparation of the prosecution’s case.

Williams argues that since he did not request the names of 

the State’s witnesses in his motion for discovery, he was not 

obligated to disclose any names of witnesses he planned to 

call. His argument is largely founded on the case of State v. 

Woods, 255 Neb. 755, 587 N.W.2d 122 (1998). In Woods, the 

Supreme Court affirmed as modified the Nebraska Court of 

Appeals’ reversal of a conviction wherein the trial court had 

required the defendant to disclose the names of alibi witnesses 

prior to trial. See State v. Woods, 6 Neb. App. 829, 577 N.W.2d 

564 (1998). The Supreme Court noted that the defendant did 

not seek the names of the State’s witnesses in the defendant’s 

discovery requests. As such, the court found that the reciprocal 

discovery provisions of § 29-1916 provided no basis for the 

trial court’s order that the defendant be required to disclose 

his witnesses.

In this case, the district court rejected Williams’ argument. 

In its decision, the district court first noted that in Williams’ 

motion for depositions, he requested “an extensive amount 

of information pertaining to possible witnesses of the State.” 

While that motion is not in our record, the district court quoted 

a paragraph of the motion as stating, “‘Evidence which is 

highly complex, such as intricate mechanical or chemical evidence or prospective testimony from an expert witness, when 

such evidence would be better understood, or eventually rebutted, by availability of information before trial . . . .’” The court 

then noted that this motion for depositions was granted. The 

district court further noted that in its prior order as to Williams’ 

discovery motion pursuant to § 29-1912, reciprocal discovery 
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was ordered. The district court then concluded that the State’s 

request was essentially identical to Williams’ request made 

in his motion for depositions. As such, reciprocal discovery as previously ordered required Williams to grant like 

access to his expert as was previously given to him as to the 

State’s witnesses.

[3,4] While our rationale differs from that of the district 

court, we agree with its ultimate decision. By its terms, 

§ 29-1916 provides only reciprocal discovery to the State as 

to orders for discovery entered pursuant to §§ 29-1912 and 

29-1913. A motion for deposition is filed pursuant to Neb. 

Rev. Stat. § 29-1917 (Reissue 2016). However, unlike general 

discovery, a motion for deposition can be filed by either party 

to a criminal case. The State’s ability to take the deposition of 

a defense witness is not dependent on the defense first taking 

depositions of prosecution witnesses. We note that Williams 

motion for depositions is not in our record. Therefore, it is 

difficult to discern whether the motion somehow goes beyond 

the parameters of § 29-1917 and is in essence a request for 

the identification of witnesses which would place it under 

§ 29-1912 as apparently found by the district court.

What is clear is that this is not a case where defense counsel 

had not identified their expert witness to the State. According 

to the motion, counsel for Williams provided the State with 

Belloto’s resume on May 31, 2017. Therefore, unlike the scenario in State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998), 

this is not a case where the State was seeking to force Williams 

to divulge the name of a witness. Rather, the State was trying 

to find out what it is that the identified witness would testify 

about. In his motion for discovery, Williams requested:

(e) The results and reports of physical or mental 

examinations, and scientific tests, or experiments made 

in connection with this particular case, or copies thereof; 

[and]

(f) Documents, papers, books, accounts, letters, photographs, objects, or other tangible things of whatsoever 
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kind or nature which could be used as evidence by the 

prosecuting authority.

These requests are quite broad, and reciprocal discovery was 

granted to the State as to each of them.

Belloto’s resume reveals that he holds several graduate 

degrees, including a Ph.D. in pharmacy. He also holds certifications with respect to several instruments used to measure 

alcohol in the breath, including the DataMaster machine—

the instrument used in this case—and had made numerous 

presentations to attorney groups regarding alcohol and drug 

testing as it relates to driving under the influence cases. As 

such, we cannot find error in the district court’s conclusion 

that Williams should provide any report generated by his 

expert that is in defense counsel’s possession as that report 

would clearly fall within the parameters of Williams’ discovery requests. Therefore, Williams had the affirmative obligation to turn over any such report pursuant to the prior order of 

the district court requiring him to provide reciprocal discovery 

to the State.

In addition, the district court did not err by giving the State 

the option to depose Belloto. The State’s motion in limine 

sought disclosure of Belloto’s opinions and the data upon 

which they were based. Under § 29-1917, the court may order 

the taking of a deposition when it finds the testimony of the 

witness may be material or relevant to the issue to be determined at the trial of the offense or may be of assistance to 

the parties in the preparation of their respective cases. Here, 

both justifications exist. While we recognize that the State’s 

motion in limine in this case did not specifically seek to depose 

Belloto, it did seek information as to his opinions and the basis 

for those opinions. Consequently, there was no error in giving the State the ability to depose a witness already disclosed 

to them.

Finally, we note that even if the district court’s order was 

considered to be error, such error was harmless. The record 

reveals that no report authored by Belloto existed or was 
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produced. No deposition or interview of Belloto took place. 

Rather, defense counsel provided a one-paragraph letter to the 

prosecutor which identified the topics about which Belloto 

would testify and the underlying materials upon which he 

would rely 4 days prior to trial. This disclosure falls far 

short of the “complete explanation of the subject matter 

upon which his expert will testify” ordered by the court. The 

substance of the disclosure tells the prosecutor that Belloto 

“will discuss the reliability of the DataMaster” and “the 

problems with the test” conducted. This information provides 

little more than could be surmised by a perusal of Belloto’s 

resume, which Williams had voluntarily disclosed. Moreover, 

the materials identified upon which Belloto would opine 

were materials previously provided to defense counsel by 

the State. The State called as witnesses two technicians, one 

who administered the breath test and one who maintained the 

breath testing equipment. While testimony was adduced from 

these witnesses as to whether the equipment was functioning 

properly so as to receive an accurate result, no expert was 

called either during the State’s case in chief or in rebuttal 

to specifically rebut the testimony of Belloto. As such, we 

cannot see how Williams’ case was harmed. Accordingly, 

we find that even if we were to find that the court erred 

in requiring disclosure of Belloto’s expected testimony, 

such requirement would be harmless error given the record 

before us.

2. Admission of Expert Calculations

and Summaries

(a) Standard of Review

[5] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

underpinning a trial court’s hearsay ruling and reviews de novo 

the court’s ultimate determination to admit evidence over a 

hearsay objection. State v. Schwaderer, 296 Neb. 932, 898 

N.W.2d 318 (2017).
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(b) Analysis

Williams next contends the district court erred in improperly 

admitting hearsay evidence in the form of Ruth’s expert calculations and summaries, namely exhibits 139 through 141, 143 

through 147, and 150, over objection during trial. In response, 

the State argues that Ruth’s calculations and summaries were 

not hearsay evidence because they did not contain Ruth’s 

opinions but only demonstrated the data and calculations upon 

which his opinions were based. Alternatively, the State argues 

such admission was harmless error.

[6,7] Hearsay is an out-of-court statement made by a human 

declarant that is offered in evidence to prove the truth of the 

matter asserted. See Neb. Rev. Stat. § 27-801 (Reissue 2016). 

See, also, State v. Baker, 280 Neb. 752, 789 N.W.2d 702 

(2010). Generally, hearsay is inadmissible except as provided 

by a recognized exception to the rule against hearsay. See Neb. 

Rev. Stat. §§ 27-802 through 27-804 (Reissue 2016).

Williams claims that the exhibits received all constituted 

hearsay. Williams relies on the case of State v. Whitlock, 

262 Neb. 615, 634 N.W.2d 480 (2001). Whitlock involved a 

condemnation action brought by the State. At trial, the court 

received the full appraisal report and supplemental report of 

the defendant’s appraiser and allowed the reports to go to 

the jury during deliberations. The Nebraska Supreme Court 

reversed the judgment and remanded the cause for a new trial, 

finding that allowing the reports to go to the jury “essentially 

amounted to a continued and more thorough testimony of his 

opinion during jury deliberations, without the benefit of crossexamination.” Id. at 620, 634 N.W.2d at 484. The court noted 

that the expert’s testimony on certain aspects of the appraisal 

were “superficial at best.” Id. at 619, 634 N.W.2d at 484. The 

report was much more detailed than the testimony and contained photographs and maps for which no foundation was 

laid. As such, the court found that the report constituted inadmissible hearsay and should not have been provided to the jury.
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In the instant case, Williams specifically complains of the 

admission of nine exhibits. Exhibits 139 and 140 are graphs 

taken from the crash data retrieval report that show the pickup 

truck’s speed, brake activation, accelerator rate, “[e]ngine 

RPM,” and precrash data status during the 4.4 seconds leading to impact. This graph is included in exhibits 137 and 138, 

which were received without objection. However, on exhibits 

139 and 140, Ruth replaced the information found in some 

boxes of the graph with “RPM” data which tells him that the 

speed was higher and the pickup truck was accelerating during 

the first few seconds measured then slowed in the last 2 seconds. In his testimony, he explained that the recorder will only 

record a maximum speed of 78.3 miles per hour regardless of 

how fast the vehicle was traveling. Therefore, his testimony 

regarding acceleration and deceleration was noted into exhibits 

139 and 140. Exhibits 141 and 143 through 147 all display 

speed calculations primarily at impact according to the various 

methods of calculation that he could perform based on the data 

retrieved from the pickup truck and the measurements taken 

at the crash scene. Exhibit 150 depicts the “EDR” data on a 

“Google Earth” photograph of the crash site.

For the most part, the exhibits display the data Ruth utilized to make his computations, the formulas used to compute 

the pickup truck’s speed using three different sets of data, 

and then the resulting estimate of speed. His ultimate range 

of speed results from a combination of the three separate 

computations made and is recorded on exhibit 145. The testimony fully explained the information listed on the exhibits. 

Therefore, unlike the reports received in State v. Whitlock, 

supra, nothing exists in the exhibits herein that was not fully 

discussed in Ruth’s testimony. While there is some level of 

opinion evidence embedded in the exhibits, they primarily 

serve as aids which demonstrate how Ruth reached his ultimate conclusion, and in the case of exhibit 150, they illustrate 

the distance traveled by Williams’ pickup truck in the seconds 

leading up to the crash. Therefore, we view the exhibits as 
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being more akin to test results that display the raw data and 

then show the methodology utilized to generate a result.

As such, the vast majority of the information contained in 

the exhibits—the raw data and formulas—were not offered 

for the truth of the matter asserted but were offered for the 

purpose of demonstrating the information and analysis used by 

Ruth in reaching his conclusions. Accordingly, those portions 

of the exhibits are not hearsay.

[8,9] To the extent that some level of opinion exists in 

the exhibits, we find that those opinions were admissible as 

demonstrative evidence. Demonstrative exhibits are admissible 

if they supplement a witness’ spoken description of the transpired event, clarify some issue in the case, and are more probative than prejudicial. State v. Daly, 278 Neb. 903, 775 N.W.2d 

47 (2009) (affirming admissibility of PowerPoint presentation 

that included several diagrams, photographs, and videos illustrating medical terms and concepts). Demonstrative exhibits 

are inadmissible when they do not illustrate or make clearer 

some issue in the case. Id. In this case, we find that the exhibits 

in question were supplemental to Ruth’s spoken description of 

the transpired event, clarified an important issue in the case, 

and were more probative than prejudicial. We again note that 

no conclusion exists in the exhibits that was not fully explained 

in the testimony.

[10,11] We are mindful however that demonstrative exhibits 

are not automatically sent to the jury room to be utilized in 

deliberations. However, a trial judge may exercise his or her 

broad discretion to allow or disallow the use of demonstrative 

exhibits during jury deliberations. State v. Pangborn, 286 Neb. 

363, 836 N.W.2d 790 (2013). Here, the exhibits in question 

were received without qualification. Therefore, no limiting 

instruction was given to the jury as to how the exhibits should 

be considered. While the cautious approach at trial may have 

been to receive the exhibits at least in part on a demonstrative basis only and give a limiting instruction, we find that 

no harm resulted from the district court’s approach. As stated, 
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the majority of the information in the exhibits was not hearsay. Any opinion evidence was cumulative to the testimony. 

Moreover, there was significant further evidence adduced during the course of trial which established that Williams was 

traveling at a high rate of speed at the time of the impact. Even 

if admitted in error, where the evidence is cumulative and 

there is other competent evidence to support the conviction, 

the improper admission or exclusion of evidence is harmless 

beyond a reasonable doubt. See State v. Rieger, 260 Neb. 519, 

618 N.W.2d 619 (2000). As such, we find that Williams suffered no prejudice as a result of the admission of exhibits 139 

through 141, 143 through 147, and 150.

3. Admission of Jailhouse

Telephone Call

(a) Standard of Review

[12,13] In proceedings where the Nebraska Evidence 

Rules apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016). 

Where the Nebraska Evidence Rules commit the evidentiary 

question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of 

discretion. Id.

(b) Analysis

Williams assigns the district court erred by admitting the 

entirety of a recorded telephone call he made to his wife from 

jail on the night of the accident over his objection. Williams 

contends specific portions of this call relating to the results 

of his breath test and the victims’ injuries constitute inadmissible hearsay. In contrast, the State argues the complained 

of portions of the call were admissible nonhearsay evidence 

because they were not offered for their truth or, alternatively, 

their admission constitutes harmless error because they were 
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cumulative of other properly admitted testimony. We agree 

with the State’s position.

[14,15] If an out-of-court statement is not offered for the 

purpose of proving the truth of the facts asserted, it is not hearsay. State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010). See 

§ 27-801(3). A trial court should identify the specific nonhearsay purpose for which the making of a statement is relevant 

and probative. State v. Baker, supra.

In this matter, Williams complains of a handful of statements contained within a recorded telephone call that lasted 

101⁄2 minutes. First, Williams’ statements regarding the results 

of his breath test, which were prompted by his wife’s question, 

were not offered by the State for their truth because they were 

not accurate. On the recorded call, Williams references breath 

test scores of 1.2 and 1.4. The technician who administered 

Williams’ breath test testified that Williams’ test result was 

actually .134. Accordingly, Williams’ telephonic statements 

regarding his breath test score were admissible nonhearsay 

evidence. Additionally, Williams’ telephonic statements regarding the victims’ injuries were also not offered for their truth, 

because Williams knew little about the particularities of the 

injuries and expressed uncertainty regarding the victims’ conditions. Because the complained-of statements on the recorded 

call were not offered for the truth of the matter asserted, their 

admission was proper.

[16] Even assuming Williams’ complained-of statements 

were improperly admitted, we determine any error was harmless as ample evidence was adduced regarding the subject 

matter of those statements from other sources. Thus, an error 

is harmless when cumulative of other properly admitted evidence. In particular, Williams’ statements on the telephone 

regarding the results of his breath test were cumulative of the 

testimony of the technician who administered Williams’ breath 

test. That technician testified that Williams’ test result was .134 

of a gram of alcohol per 210 liters of breath, which comports 

with exhibit 105, a copy of the Omaha Police Department’s 
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“INFRARED ABSORPTION Checklist Technique” that the 

technician who administered Williams’ breath test completed 

on the night in question.

Williams’ statements on the telephone regarding the victims’ 

injuries were also cumulative as multiple witnesses testified to 

the nature of the victims’ injuries. Most notably, Sorenson’s 

treating physician testified that Sorenson had burns to her face 

and hands and a ruptured spleen due to the accident. Sorenson 

also testified that she sustained injuries to her spleen and burns 

to her face and hands. Additionally, Gentile testified to seeing 

the three victims’ injuries when he first arrived at the scene. 

Accordingly, even if admission of the complained-of statements constituted error, no harm resulted to Williams.

4. Striking Juror for Cause

(a) Standard of Review

[17,18] Retention or rejection of a juror is a matter of discretion with the trial court. State v. Krutilek, 254 Neb. 11, 573 

N.W.2d 771 (1998). Thus, the standard of review in a case 

involving a motion to dismiss a juror is whether the trial court 

abused its discretion. Id.

(b) Analysis

Williams contends that a prospective juror ought to have 

been stricken for cause due to his familiarity with this case’s 

underlying facts. Accordingly, Williams argues the district 

court erred in denying his motion to strike that prospective 

juror. The State argues that the prospective juror in question 

was not biased by his knowledge of the case, meaning there 

was no ground to remove him for cause. Additionally, the State 

argues that Williams was not prejudiced because the objectionable prospective juror did not actually sit on the jury. We find 

that the district court did not abuse its discretion by overruling 

Williams’ motion to strike the juror for cause.

[19,20] Through the use of peremptory challenges or challenges for cause, parties can secure an impartial jury and avoid 
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including disqualified persons. See State v. Quintana, 261 Neb. 

38, 621 N.W.2d 121 (2001), modified on denial of rehearing

261 Neb. 623, 633 N.W.2d 890. The retention or rejection of a 

juror is a matter of discretion for the trial court. State v. Huff, 

298 Neb. 522, 905 N.W.2d 59 (2017). Jurors who form or 

express opinions regarding an accused’s guilt based on witness 

accounts of the crime must be excused for cause. See, Neb. 

Rev. Stat. § 29-2006 (Supp. 2017); State v. Galindo, 278 Neb. 

599, 774 N.W.2d 190 (2009). However, jurors whose source of 

information is from newspaper reports, hearsay, or rumor can 

be retained if the court is satisfied that such juror can render an 

impartial verdict based upon the law and the evidence adduced. 

See, § 29-2006; State v. Galindo, supra.

[21-23] Even the erroneous overruling of a challenge for 

cause will not warrant reversal unless it is shown on appeal 

that an objectionable juror was forced upon the challenging 

party and sat upon the jury after the party exhausted his or 

her peremptory challenges. State v. Galindo, supra. Appellate 

courts ought to defer to the trial court’s judgment on a motion 

to strike for cause, because trial courts are in the best position 

to assess the venire’s demeanor. See id. Notably, the court in 

State v. Galindo, supra, only considered arguments regarding 

2 of the 19 potential jurors who the defendant claimed ought 

to have been stricken for cause because only those 2 potential 

jurors actually ended up seated on the jury. The complaining 

party must prove it used all its peremptory challenges and 

would have used a challenge to remove other biased jurors if 

not for the court’s error. See State v. Rodriguez, 272 Neb. 930, 

726 N.W.2d 157 (2007).

In the present matter, during the State’s voir dire, the prospective juror at issue stated that he was familiar with the facts 

of this case. The prospective juror also stated he had served 

on a civil jury some time ago and had practiced law for many 

years, trying mostly civil cases and one shoplifting case in 

which he served as defense counsel.
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In chambers, and with counsel and Williams present, the 

prospective juror in question recounted the particular facts of 

this matter that he remembered, stating he “followed it pretty 

closely.” For example, the prospective juror recalled the area 

of the accident, basic descriptions of the parties involved, and 

basic facts of the accident. Upon questioning, he confirmed 

he was “going off [his] memory of some news reports” that 

he read or watched at the time. When asked by the State’s 

attorney, the prospective juror confirmed he would follow the 

court’s instructions and make a decision based only on the evidence presented in court.

Williams’ counsel then questioned the prospective juror, who 

acknowledged discussing the accident with other people when 

it happened and stated that “it sounded pretty nasty” but denied 

having already made up his mind. Upon further questioning by 

Williams’ counsel, the prospective juror agreed that separating 

what he already knew from the evidence was possibly difficult and expanded by saying, “I don’t think that anybody can 

separate their life’s experience from — from what they hear. 

You are going to have some opinions you come in with.”

After Williams moved to strike this prospective juror for 

cause, the court inquired further, revealing that the prospective juror had practiced law for some 25 years. The court also 

noted that no jurors have “100 percent clean minds” and sought 

to determine whether the prospective juror would deliberate 

and decide the matter based solely on the evidence presented 

in court. The prospective juror stated, “Based upon my years 

practicing law, I would hope that all my jurors would look 

at the evidence and not anything else, and I would do my 

darnedest to do the same thing.” Satisfied, the court overruled 

Williams’ motion to strike the prospective juror for cause. The 

prospective juror in question was subsequently excused at the 

conclusion of the jury selection process after the parties exercised their peremptory strikes.

We find no abuse of discretion by the district court. 

Although additional questions could have been asked, we are 
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satisfied that the prospective juror’s answers showed a clear 

intent and capability to be an impartial juror in this matter. After practicing law for some 25 years, the prospective 

juror’s statements show that he recognized the practical reality 

that no person enters the jury box devoid of personal experiences. Even though the prospective juror’s experiences happened to include reading publications about the accident for 

which Williams was charged, the prospective juror repeatedly 

stated his intent to consider only the evidence offered in the 

courtroom. It is also clear that the prospective juror intended 

to conduct himself as he expected all jurors would, judging 

Williams solely on the evidence offered in court and nothing else. As such, particularly given our standard of review 

and recognizing that the district court had the opportunity to 

observe the prospective juror’s demeanor and the manner in 

which he answered questions, we find the court did not err 

in overruling Williams’ motion to strike the prospective juror 

in question.

5. Motions to Suppress

(a) Standard of Review

[24] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. State 

v. Petsch, 300 Neb. 401, 914 N.W.2d 448 (2018); State v. Botts, 

299 Neb. 806, 910 N.W.2d 779 (2018). Regarding historical 

facts, an appellate court reviews the trial court’s findings for 

clear error, but whether those facts trigger or violate Fourth 

Amendment protection is a question of law that an appellate 

court reviews independently of the trial court’s determination. 

State v. Petsch, supra; State v. Botts, supra.

[25] In reviewing a motion to suppress a confession based 

on the claimed involuntariness of the statement, including 

claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we apply a 
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two-part standard of review. State v. Rogers, 277 Neb. 37, 760 

N.W.2d 35 (2009). With regard to historical facts, we review 

the trial court’s findings for clear error. Id. Whether those facts 

suffice to meet the constitutional standards, however, is a question of law which we review independently of the trial court’s 

determination. Id.

[26] When a motion to suppress is denied pretrial and again 

during trial on renewed objection, an appellate court considers 

all the evidence, both from trial and from the hearings on the 

motion to suppress. State v. Rogers, 297 Neb. 265, 899 N.W.2d 

626 (2017).

(b) Arrest of Williams

[27] Before engaging in our analysis of the issues presented regarding Williams’ motions to suppress, we must 

pause to note that our analysis is hampered by the brevity and 

absence of more particularized findings made by the district 

court in its order overruling Williams’ motion. “[D]istrict 

courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress.” 

State v. Osborn, 250 Neb. 57, 67, 547 N.W.2d 139, 145 

(1996). While the degree of specificity can vary from case to 

case and while some very brief general findings were made in 

this case, to the degree the district court can be more specific 

in its findings, our review of its ultimate disposition of the 

motion is aided.

Williams contends the court erred in denying his motion to 

suppress evidence arising from his arrest because the arrest 

was not supported by probable cause. In response, the State 

argues there was probable cause that Williams committed 

multiple crimes, which was sufficient to support Williams’ 

arrest.

[28-31] The Fourth Amendment to the U.S. Constitution 

and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the state. 

State v. Pester, 294 Neb. 995, 885 N.W.2d 713 (2016). An 
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arrest constitutes a seizure that must be justified by probable 

cause to believe that a suspect has committed or is committing a crime. Id. Probable cause to support a warrantless arrest 

exists only if law enforcement has knowledge at the time of 

the arrest, based on information that is reasonably trustworthy 

under the circumstances, that would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime. State v. Botts, 299 Neb. 806, 910 N.W.2d 779 

(2018). Probable cause is a flexible, commonsense standard 

that depends on the totality of the circumstances. Id. An appellate court determines whether probable cause existed under an 

objective standard of reasonableness, given the known facts 

and circumstances. Id.

Williams’ arrest was supported by probable cause and therefore does not warrant suppression. Neither party disputes that 

Blice placed Williams under arrest. Williams’ contention that 

this arrest was not supported by probable cause flies in the 

face of ample circumstances giving rise to probable cause for 

officers to arrest him.

At the hearing on Williams’ motion to suppress, the State 

called Blice, who responded to the accident in this matter. He 

testified to investigating intoxicated drivers during the course 

of his time with the Omaha Police Department. He further testified that general signs of intoxication include poor balance, 

an appearance of confusion, red or watery eyes, slurred or thick 

speech, and an odor of alcoholic beverages.

Blice testified that he and Gentile were dispatched to the 

scene of the accident at 7:14 p.m. Upon arrival, he first saw 

the pickup truck on its side near 52d and Blondo Streets and a 

second vehicle on fire approximately one block south. The area 

wherein the accident took place was residential. Upon exiting his police cruiser, Blice walked to the area of the second 

vehicle and observed that it had been virtually split in half by 

the impact. He testified that the speed limit at that location was 

30 miles per hour, but that from his assessment of the scene, 

the collision had to have occurred at a much higher speed. 
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After ensuring there were no occupants left inside the second 

vehicle, Blice walked back toward the pickup truck, noticing 

the presence of full beer cans and ice from the impact area 

all the way back to the pickup truck. Once back to the pickup 

truck, Blice spoke with witnesses who had heard the crash and 

presumably arrived very soon after. The witnesses described 

observing the pickup truck driver get out of his vehicle and 

walk to the north away from the scene. As Blice continued 

speaking with witnesses, they pointed behind him and identified Williams, who was walking around, as the pickup truck 

driver. By that point, Williams was located to the south of 

Blice, between the two vehicles. When Blice made contact 

with Williams, he observed that Williams appeared disoriented, 

smelled of alcohol, and exhibited slurred speech and watery 

eyes. Williams acknowledged immediately that he was the 

driver of the pickup truck and was thereafter handcuffed and 

placed into the police cruiser.

We find that probable cause to arrest Williams existed 

at the time of arrest based on the totality of the facts and 

circumstances. Blice had probable cause to arrest Williams 

based on an objectively reasonable belief that Williams was 

driving under the influence of alcohol when involved in this 

accident. At the time of arrest, Williams was emitting an odor 

of alcoholic beverage, his eyes were bloodshot and watery, 

his speech was slurred and thick—all indicators of possible 

intoxication. Further, although Blice had not observed the 

accident, he knew that Williams had operated his pickup 

truck at a high rate of speed in a residential neighborhood 

sufficient to almost cut one vehicle in half and have his 

pickup truck roll onto its side and slide almost one block. 

This erratic driving behavior and lack of regard for the 

safety of others also supports the conclusion that probable 

cause existed for the arrest. Based on the totality of the facts 

and circumstances present, probable cause existed to believe 

Williams was operating a motor vehicle while under the 

influence of alcohol.
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Moreover, Neb. Rev. Stat. § 60-697 (Cum. Supp. 2016) 

requires the driver of a vehicle involved in an accident to 

immediately stop and ascertain the identity of all persons 

involved; provide his name, address, and license number to the 

persons struck or occupying the other vehicle; and render reasonable assistance to injured persons. Given Blice’s testimony 

that witnesses saw Williams exit the pickup truck and walk in 

the opposite direction of the accident scene and that officers 

did not locate Williams until witnesses observed and identified 

him, Blice had probable cause to believe Williams had left or 

was attempting to leave the scene of an accident.

Finding probable cause existed to support Williams’ arrest, 

we find that the district court did not err by denying Williams’ 

motion to suppress.

(c) Pre-Miranda Statements

Williams argues that the court erred in not suppressing statements he made after being handcuffed and placed in the police 

cruiser, because they were elicited in violation of his rights 

pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966). The State argues that, assuming the 

court erred, its error was harmless. We find that the court erred 

in overruling the motion to suppress Williams’ responses to 

Blice’s questions asked while at the scene in the police car, but 

we further find that the error was harmless.

[32-34] The Miranda Court adopted a set of safeguards to 

protect suspects during modern custodial interrogations, which 

have also been implemented through Nebraska courts. See 

State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014). These 

safeguards are implicated whenever a person is in custody 

and interrogated. See id. A person is in custody for purposes 

of Miranda when formally arrested or otherwise restrained 

so as to be unable to move freely. See State v. Bormann, 279 

Neb. 320, 777 N.W.2d 829 (2010). It is undisputed that a person who is handcuffed and placed in a police cruiser’s back 

seat is in custody. See id. An interrogation includes express 
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questioning, its functional equivalent, and any police conduct 

that police officers ought to know is reasonably likely to 

elicit incriminating responses. See id. An arrestee’s voluntary 

statements, which are not the product of interrogation, are not 

protected under Miranda, however, and are therefore admissible. See id.

[35,36] When a custodial interrogation occurs in the absence 

of Miranda-style procedural safeguards, an arrestee’s selfincriminating statements are inadmissible in court. See State 

v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014) (holding 

arrestee’s statements made aloud to himself while handcuffed 

in police cruiser before being administered Miranda warning 

were admissible because arrestee was not subject of custodial 

interrogation). In determining whether the State has shown the 

admissibility of custodial statements by the requisite degree of 

proof, an appellate court will accept the factual determination 

and credibility choices made by the trial judge unless they are 

clearly erroneous and, in doing so, will look to the totality 

of the circumstances. State v. Rodriguez, 272 Neb. 930, 726 

N.W.2d 157 (2007).

[37] Even when a trial court errs in failing to suppress a 

statement elicited in violation of Miranda v. Arizona, supra, 

the error may be harmless and thus not require reversal on 

appeal. Erroneous admission of evidence is a harmless error 

and does not require reversal if the evidence is cumulative and 

other relevant evidence, properly admitted, supports the finding by the trier of fact. State v. Juranek, supra. Thus, harmless 

error analysis focuses on the basis on which the trier of fact’s 

verdict rested. See id. The proper inquiry is whether the trier 

of fact’s verdict was certainly not attributable to the error. See 

id. See, also, State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 

(2012) (holding trial court’s error in admitting arrestee’s statements obtained in violation of Miranda principles was harmless because there was overwhelming other evidence on which 

jury’s conviction likely rested).
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In this case, Williams was certainly in custody for purposes of Miranda v. Arizona, supra, when he was handcuffed, 

placed in the back seat of Blice’s police cruiser, and locked 

in. Additionally, Blice directly questioned Williams. This 

questioning constituted interrogation. As a result, Williams’ 

responses should not have been admitted unless the evidence demonstrated that Williams was first administered a 

Miranda warning and waived his rights thereunder. The district court, whose factual determinations should be accepted 

unless clearly erroneous, determined that the officers solicited 

statements from Williams before he was read a Miranda warning but nonetheless found those statements to be admissible. 

We find, however, that the express questioning by Blice while 

Williams was handcuffed in the back of the police cruiser 

constituted a custodial interrogation without the benefit of a 

Miranda warning. Therefore, those statements, some of which 

were incriminating, should have been suppressed.

However, in this instance, the court’s error was harmless. 

A review of the record shows that the substance of the inadmissible statements was also introduced to the jury through 

admissible evidence. In violation of Miranda safeguards, Blice 

asked basically three questions to which Williams responded. 

Williams stated that someone pulled in front of him and that 

he tried to stop, but could not do so. Williams admitted that 

he was driving too fast and stated he was northbound on 52d 

Street when the collision occurred. The substance of this inadmissible evidence was properly admitted in other forms, however, including through Williams’ jailhouse telephone calls to 

his wife and other witness accounts of hearing the collision and 

viewing the accident scene. In addition, expert witness testimony was adduced as to the speed Williams’ pickup truck was 

traveling. The inadmissible statements were therefore cumulative of other properly admitted evidence. Accordingly, while 

the court erred in admitting Williams’ statements that were 

made in the absence of Miranda safeguards, the error was 

harmless and thus does not warrant reversal on appeal.
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We note for the sake of completeness that Williams did make 

some other statements while in the police cruiser which were 

received in evidence. However, on our review, we find that 

those statements either were volunteered and not in response to 

questioning or were in response to Gentile’s inquiries regarding 

whether Williams needed medical attention. No incriminating 

response was made to Gentile’s inquiries.

(d) Post-Miranda Statements

Williams contends the court erred in admitting statements he 

made after receiving a Miranda warning at the police station, 

arguing such post-Miranda statements were really made during 

the continuation of a custodial interrogation begun before the 

Miranda warning was administered. The State argues Williams’ 

statements were not obtained as the result of a continuous twostep interrogation and thus were admissible. We find no error 

in the district court’s denial of Williams’ motion to suppress his 

post-Miranda statements.

[38,39] Generally, incriminating statements are admissible 

when elicited after officers have provided a Miranda warning and received the accused’s voluntary waiver. See Missouri 

v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 

(2004). Courts must consider whether a Miranda warning, 

when given after an arrestee has already made incriminating 

statements, is sufficient to advise and convey that the arrestee 

may choose to stop talking even though he or she has spoken 

before the warning was administered. See id. “The threshold 

issue when interrogators question first and warn later is thus 

whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda

requires.” Id., 542 U.S. at 611-12. Where the warning is not 

effective to place an arrestee in a position to make an informed 

choice to stop talking, there can be reason neither to accept 

the warning as compliant with Miranda nor to treat the second 

stage of interrogation as separate from the first, inadmissible 

stage. See Missouri v. Seibert, supra.
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[40] To determine whether a midinterrogation Miranda

warning is sufficient to warrant the admission of post-Miranda

statements, courts should consider five factors developed by 

the Court in Seibert:

the completeness and detail of the questions and answers 

in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the 

first and second, the continuity of police personnel, and 

the degree to which the interrogator’s questions treated 

the second round as continuous with the first.

Id., 542 U.S. at 615.

In applying the Seibert factors, the court in State v. Juranek, 

287 Neb. 846, 844 N.W.2d 791 (2014), held that the circumstances of the pre- and post-Miranda interrogations therein 

showed that the Miranda warning was effective. In particular, 

the court held that the accused’s post-Miranda statements were 

not rendered inadmissible due to the pre-Miranda interrogation, because the initial interrogation consisted of only a single 

question that was focused on matters other than key points of 

the investigation. See State v. Juranek, supra.

[41] The court again examined and applied the Seibert factors in State v. Clifton, 296 Neb. 135, 156, 892 N.W.2d 112, 

131 (2017), and held that in instances of midinterrogation 

Miranda warnings, violations under Seibert must include “an 

inculpatory prewarning statement that somehow overlaps with 

statements made in the postwarning interrogation.” Notably, 

in Clifton, only 5 minutes of pre-Miranda questioning took 

place, and the questioning focused on information such as the 

spelling of the defendant’s name, his address, and educational 

background. In fact, the defendant in Clifton made no incriminating statements before a Miranda warning was administered. 

Accordingly, the court in Clifton held that the trial court 

did not err in denying the defendant’s motion to suppress 

his statements.

In this case, before administering to Williams a Miranda

warning, Blice spoke with him while he was handcuffed and 
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in the back of a police cruiser shortly before 7:30 p.m. Blice 

asked Williams a few questions regarding what had happened, 

what direction he was going, and how fast he was driving when 

the accident occurred. The entire encounter was brief, lasting 

approximately a minute. Blice and Gentile then drove Williams 

to the police station.

After transporting Williams to the police station, Blice 

administered a Miranda warning to Williams at 8:34 p.m. 

as noted in the driving under the influence supplementary 

report and field notes form, and Williams thereafter agreed 

to answer Blice’s interview questions. Blice testified that he 

typed responses into the form as Williams answered his questions. Blice asked Williams whether he was operating a vehicle, where he was headed, whether and how much he had been 

drinking, and whether he was ill or had any injuries. Williams 

answered that he was driving north to his home and that he 

had ingested “too many beers,” that being six between 3 p.m. 

and 6:45 p.m. He also stated that he was feeling the effects of 

alcohol less at the time of the interview than at the time he 

was first contacted by police. He denied that he had taken any 

medications and stated that he did believe his drinking had 

affected his ability to drive safely. The interview concluded at 

8:39 p.m.

Although during the pre-Miranda interrogation, Williams 

admitted to being the driver of the pickup truck that struck and 

injured the victims in this matter, he did not at that time mention drinking any alcohol. He merely stated the direction he 

was driving and that he could not stop before impact. Blice’s 

pre-warning questions did not go to many of the key points 

of the investigation. Accordingly, while some of Williams’ 

statements do overlap the two interrogations, they are not the 

sort of overlapping and inculpatory statements that the court 

in State v. Clifton, supra, found was necessary for a Miranda

violation under Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 

2601, 159 L. Ed. 2d 643 (2004).
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Moreover, upon evaluation of the Seibert factors, most of 

them fall in favor of admissibility in this instance. Although 

there was continuity of police personnel throughout Williams’ 

pre- and post-Miranda warning interrogations, the interrogations took place roughly an hour apart and were conducted in 

different locations. Additionally, Williams’ prewarning answers 

were cursory and devoid of detail, and the postwarning questions did not act as a mere continuation of the prewarning 

interrogation. While some topics were addressed during both 

interrogations, the postwarning questions were more detailed 

and focused more on Williams’ alcohol consumption, which 

was not covered in the prewarning questions. Accordingly, 

under Missouri v. Seibert, supra, Williams’ two-step interrogation did not violate Miranda principles. Thus, we find no error 

in the district court’s denial of Williams’ motion to suppress his 

post-Miranda statements.

V. CONCLUSION

Having found no error or, alternatively, only harmless error 

in the orders and rulings challenged by Williams herein, we 

hereby affirm Williams’ convictions.

Affirmed.