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300 Nebraska Report

STATE v. BLAIR

Cite as 300 Neb. 372

State of Nebraska, appellee, v.

Kenneth W. Blair, appel

___ N.W.2d ___

Filed June 29, 2018. No. S-17-436.

1. Criminal Law: Rules of Evidence: Pretrial Procedure: Appeal and 

Error. The decision whether to reveal the identity of a confidential 

informant is controlled by Neb. Rev. Stat. § 27-510 (Reissue 2016), and 

judicial discretion is involved only to the extent § 27-510 makes discretion a factor in determining that question. Where § 27-510 commits a 

question at issue to the discretion of the trial court, an appellate court 

reviews the trial court’s determination for an abuse of discretion.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

3. Trial: Evidence. Whether there is sufficient foundation evidence for the 

admission of physical evidence must necessarily be determined by the 

trial court on a case-by-case basis.

4. Trial: Evidence: Appeal and Error. A trial court’s determination of 

the admissibility of physical evidence will not ordinarily be overturned 

except for an abuse of discretion.

5. Criminal Law: Rules of Evidence: Pretrial Procedure: Testimony: 

Appeal and Error. A ruling made under the initial step of Neb. Rev. 

Stat. § 27-510(3)(b) (Reissue 2016), regarding whether an informer may 

be able to give testimony necessary to a fair determination, requires a 

court to use its judgment and thus exercise its discretion. An appellate 

court therefore reviews such a ruling for an abuse of discretion.

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Aff

Matthew R. Kahler and Beau G. Finley, of Finley & Kahler 

Law Firm, P.C., L.L.O., for appellant.

Nebraska Supreme Court Online Library

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

08/31/2018 09:09 AM CDT
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Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Papik, JJ., and Schreiner, District Ju

Miller-Lerman,

NATURE OF CASE

Kenneth W. Blair appeals his conviction and sentence in the 

district court for Douglas County for possession of a deadly 

weapon by a prohibited person. Blair claims on appeal that the 

district court erred when it overruled his motion to reveal the 

identity of a confidential informant and when it admitted a gun 

into evidence over his objection. We affirm Blair’s conviction 

and sentence.

STATEMENT OF FACTS

The State filed an information against Blair in which it 

alleged three counts: possession of a deadly weapon by a 

prohibited person; possession of a stolen firearm; and manufacturing, distributing, or possessing with intent to distribute a 

controlled substance, cocaine. The charges against Blair were 

based on evidence obtained from the execution of a search 

warrant for Blair’s house and for his person. After it found 

probable cause based on the sworn affidavit and application 

of Officer Lisa Villwok of the Omaha Police Department, the 

Douglas County Court issued the search warrant on August 16, 

2015. The warrant authorized police to search for and seize 

items including, inter alia, cocaine and related paraphernalia and records and any firearms and companion equipment 

relating to such firearms. The affidavit indicated that Villwok 

obtained much of the information supporting her application 

from a confidential informant. The search warrant was executed on August 22.

Prior to trial, Blair filed a motion to suppress evidence 

obtained from the search. He asserted that Villwok’s affidavit 

did not establish probable cause, because it was “based solely 
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on statements made by an unnamed confidential informant, 

with insufficient information regarding his or her reliability, 

and a complete lack of independent evidence corroborating the 

statements made by said confidential informant.” Blair also 

filed a motion to reveal the identity of the confidential informant. He asserted that the confidential informant had “provided 

information to the State and was an actual participant or eye 

witness to the alleged offenses with which [Blair] is charged 

in that the confidential informant set up the alleged transaction for which [Blair] has been charged.” Blair further asserted 

that knowledge of the identity of the confidential informant 

was “necessary to the preparation of the defense herein” and 

that without such knowledge, he was “unable to adequately 

prepare a defense of this case and address any informant who 

apparently has personal knowledge of the events which are the 

subject of the Information.”

The court held a hearing on the two motions on June 

14, 2016. Blair asked the court to take up the two motions 

together, because the matters were intertwined and because 

Villwok was the sole witness as to both matters. Shortly before 

the hearing started, on the State’s motion, the court dismissed 

without prejudice the charge of manufacturing, distributing, 

or possessing with intent to distribute a controlled substance, 

cocaine. This left two charges for trial: (1) possession of a 

deadly weapon by a prohibited person and (2) possession of a 

stolen firearm.

Villwok testified as follows at the hearing on the two 

motions. Villwok had been a police officer for over 12 years 

and had been assigned to the “[g]ang unit” for over 5 years. In 

that assignment, she commonly used confidential informants 

who provided information regarding investigations involving gangs, narcotics, and gun-related matters. She would 

attempt to verify the accuracy of information provided by 

confidential informants before using the information to obtain 

search warrants. In August 2015, a confidential informant 

with whom she had previous experience provided Villwok 
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information regarding Blair. Villwok knew the confidential 

informant to have provided accurate information, including 

information that in the past had led to arrests and the seizure 

of illegal narcotics. The confidential informant told Villwok 

that Blair was selling cocaine out of his residence; the confidential informant had been inside Blair’s residence and had 

observed Blair using a digital scale to measure cocaine, then 

packaging the cocaine in a plastic baggie and selling it to an 

individual in exchange for money. The confidential informant 

gave Villwok a physical description of Blair and told Villwok 

where Blair lived.

Villwok followed up on the physical description by searching a law enforcement database for information regarding Blair 

and determining that the physical description of Blair in the 

database was similar to the description given by the confidential informant. Villwok printed a photograph of Blair from 

the database and showed the photograph to the confidential 

informant, who identified Blair as the person he had observed 

selling cocaine. Villwok also had the confidential informant 

direct her to the area where Blair lived and point out the house 

in which Blair lived. Villwok determined the address for the 

house, and by referencing the county assessor’s website, she 

learned that Blair was listed as the owner of the house. Villwok 

also verified that two local utility companies listed Blair as the 

person responsible for services at the house. Villwok checked 

Blair’s criminal history and learned that he had been arrested 

for various offenses, including, inter alia, possessing different 

types of narcotics, including cocaine, and being a prohibited 

person in possession of a gun.

Villwok included the information she obtained from the 

confidential informant in an affidavit that she used to apply 

to the county court for a search warrant for Blair’s house and 

his person. The county court issued the search warrant based 

on Villwok’s affidavit. Villwok and other officers executed the 

search warrant on August 22, 2015. The confidential informant 

did not accompany Villwok and was not present at Blair’s 
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house during the execution of the search warrant. Villwok 

found Blair in a bedroom of the house. During the search, 

another police officer found a Smith & Wesson 9-mm handgun 

located under a pillow at the head of the bed in the bedroom in 

which Blair was found. There was no one other than Blair in 

the room when police officers arrived.

Based on the gun and other evidence found in the search, 

Blair was placed under arrest, and Villwok interviewed him at 

the house. In the interview, Blair “took no claim to the residence” and “denied any knowledge of the gun or of the narcotics located inside of the residence as well as the paraphernalia 

and the other items.”

Villwok continued to use information from the confidential 

informant after the search in this case. Villwok testified that 

the confidential informant had not been charged with a crime 

and did not have any pending criminal case at the time the 

informant provided the information regarding Blair but that 

the confidential informant was paid money for information the 

informant provided that resulted in an arrest. Villwok testified 

that the confidential informant had not been promised that 

he or she would not have to testify in this case but that the 

confidential informant and Villwok both had concerns for the 

informant’s safety because of possible retaliation if the role as 

a confidential informant were exposed.

On cross-examination, Villwok testified that between 

August 16, 2015, when the search warrant was issued, and 

August 22, when it was executed, she had conducted surveillance of Blair’s house, but that she did not attempt to make 

a controlled purchase from Blair. Villwok also testified that 

she obtained and executed another search warrant for Blair’s 

house in February 2016. The information to support the second search warrant was provided by the same confidential 

informant as in this case. During the investigation related 

to cocaine found in the house in the second search, another 

resident of the house admitted that the cocaine was his. The 

other resident was arrested for possession with intent to 
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distribute cocaine. Blair was also arrested after the second 

search but was charged with only possession with intent to 

deliver marijuana.

Villwok further testified on cross-examination that prior to 

the search in August 2015, the confidential informant had told 

her that “Blair may be in possession of a long gun.” However, 

the gun that was found in the August 2015 search was a handgun, and Villwok testified that no “long gun” was found in 

the search. In the affidavit that was submitted to obtain the 

search warrant in August, Villwok included that the confidential informant had stated that Blair “may be in possession of a 

long gun in his bedroom.”

Other than his cross-examination of Villwok, Blair did not 

present evidence at the hearing on the motion to suppress and 

the motion to reveal the identity of the confidential informant. 

The court overruled the motion to suppress, because it concluded that there was sufficient probable cause to issue the 

search warrant and, alternatively, that the warrant was executed 

in good faith. The court also overruled the motion to reveal 

the identity of the confidential informant. The court noted that 

Neb. Rev. Stat. § 27-510 (Reissue 2016) generally provides 

for “a privilege to refuse to disclose the identity of a person 

who has furnished information relating to or assisting in an 

investigation of a possible violation of law to a law enforcement officer” but that under § 27-510(3)(b), subject to certain 

conditions, disclosure may be required “‘[i]f it appears from 

the evidence in the case or from other showing by a party that 

an informer may be able to give testimony necessary to a fair 

determination of the issue of guilt or innocence in a criminal 

case.’” The court noted that although the confidential informant was a witness to a drug transaction carried out by Blair, 

“Blair is no longer charged with a drug offense, but with a 

weapons offense.” The court therefore found that “because 

[Blair] is not charged with a drug offense, the [confidential 

informant] cannot . . . give testimony which is material to the 

offense charged.”
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STATE v. BLAIR

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Blair thereafter waived his right to a jury trial on the two 

remaining charges. At the bench trial, the State’s witnesses 

included Chris Brown, an Omaha Police Department officer 

assigned to the gang unit. Brown was part of the team that 

assisted Villwok in executing the search warrant for Blair’s 

house on August 22, 2015. Brown was tasked with searching the bedroom in which Blair had been found. Brown 

testified that he “picked up the pillow that was on the bed 

and observed a black firearm.” The State offered into evidence pictures that had been taken of the bed and the pillows. Brown testified that the pictures depicted how things 

appeared at the time of the search. He noted that some of 

the pictures showed the gun partially visible underneath the 

pillow, and he testified that the pictures depicted where the 

gun was when he found it. The State then showed Brown a 

gun that was marked as an exhibit. Brown testified that the 

exhibit was the gun that he found in the bedroom and that he 

was able to identify the gun because it was the same make 

and model and it had the same serial number. He testified 

that the gun appeared to be in generally the same condition 

as it was when he found it. The State offered the gun into 

evidence, and Blair objected to admission of the gun based 

on foundation.

Blair had previously objected on the same basis when 

Brown first testified that he had found the gun. On both occasions, Blair was allowed to voir dire Brown with regard to 

the gun. Blair’s questioning after Brown’s first mention of 

the gun was directed toward the return and inventory that was 

filed after the search warrant was executed. Brown testified 

that he personally did not prepare the return and inventory 

and that another officer on the team had done so. After Blair 

had Brown read the return and inventory, Brown testified that 

while other items he had found in the search of the bedroom 

were listed in the document, the gun was not listed. The court 

sustained the State’s objection to Blair’s line of questioning 

based on relevance. Blair suspended his voir dire at that time 
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but continued it after he objected to the State’s offer of the 

gun into evidence. Blair began to question Brown about an 

alleged discrepancy between the item number on the gun and 

the list of items in the return and inventory. After the court 

sustained the State’s objection to the line of questioning, Blair 

concluded the voir dire. He then argued to the court that the 

State did not establish foundation for admission of the gun 

into evidence. He generally argued that because the gun was 

not listed on the return and inventory, the State had not established a chain of custody for the gun, and that therefore, it was 

not admissible.

After hearing argument from both Blair and the State, the 

court overruled Blair’s objection and admitted the gun into 

evidence. The court reasoned that Brown had testified that 

the gun being offered into evidence was the same make and 

model and had the same serial number as the gun he found in 

the bedroom.

Brown’s testimony continued after the gun was admitted into 

evidence. Brown testified that after he saw the gun, he placed 

the pillow back where he had found it and “immediately contacted the crime lab unit to come retrieve” the gun. He stated 

that this was standard practice for collecting a gun. Brown did 

not touch the gun himself, but he remained in the bedroom and 

continued searching for other items. He found various items, 

including letters addressed to Blair and other items connected 

to Blair. He also found two 9-mm gun magazines. Brown testified that the gun he had found was a Smith & Wesson 9-mm 

handgun. Brown packaged these other items and provided them 

to the officer who was preparing the inventory. Brown was 

still in the bedroom when a forensic technician from the crime 

laboratory arrived to collect the gun. Brown was present as she 

photographed the gun and the room.

Kimberly Van den Akker, whom Brown identified as the 

forensic technician who collected the gun, also testified at 

trial. Van den Akker was directed to the bedroom when she 

arrived at Blair’s house. She took photographs of the bedroom 
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STATE v. BLAIR

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as it appeared when she entered the room. She had been told 

that the gun was under a pillow, so she moved the pillow to 

reveal the gun, and she then took additional pictures of the 

gun in the location where it was found. Van den Akker was 

shown the gun that had been admitted into evidence during 

Brown’s testimony, and she identified it as the gun she saw 

in the bedroom. After photographing the gun, she put on 

fresh gloves, removed the gun from under the pillow, and 

placed the gun onto a clean paper bag. She unloaded the gun 

and took another picture of it. She then placed the gun into 

another clean paper bag and placed the magazine and round 

that she had unloaded from the gun into a separate envelope. She then transported the items to the crime laboratory. 

Van den Akker testified that from the point she arrived in the 

bedroom until she returned to the crime laboratory, she was 

the only person who had possession of or touched the gun. 

At the crime laboratory, the items were placed into a secured 

locker. Van den Akker was the sole technician who did further 

processing on the gun. Such processing included swabbing the 

surface of the gun for possible DNA. She packaged the swab, 

sealed and labeled the package, and turned it over to the evidence property unit.

At the end of its case, the State presented certain testimony 

to which Blair had stipulated. The State asserted that the gun 

that had been entered into evidence had been test fired by a 

forensic technician and that the technician would testify that it 

was “a weapon which is designed to expel any projectile by the 

action of an explosive or frame or receiver of such weapon.” 

The State further asserted that a crime laboratory technician 

had collected a buccal swab from Blair and that the buccal 

swab and the swab Van den Akker had taken from the gun were 

submitted for DNA testing. The State offered into evidence 

the DNA report containing the results of a comparison of the 

two swabs. The report stated that Blair was not excluded as a 

partial profile contributor to the DNA tested. The court allowed 

the DNA report into evidence over Blair’s objection. Blair 
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stated that his objection to the DNA report, which was also his 

general objection to the stipulated testimony presented by the 

State, was “just [his] foundational objection again . . . to the 

underlying firearm.” The court also allowed, without objection by Blair, evidence that Blair had a prior felony conviction 

from 1999.

The State rested its case, and Blair moved to dismiss both 

counts. After Blair and the State argued the motion to dismiss, 

Blair rested his defense without providing evidence. The parties made closing arguments, and the court stated that it would 

announce its verdict at a later date. At that later date, the 

court found Blair guilty of possession of a deadly weapon by 

a prohibited person, but it found him not guilty of possession 

of a stolen firearm. The court later sentenced Blair to imprisonment for a mandatory minimum of 3 years and a maximum 

of 6 years.

Blair appeals his conviction and sentence.

ASSIGNMENTS OF ERROR

Blair claims that the district court erred (1) when it overruled his motion to reveal the identity of the confidential 

informant and (2) when it admitted the gun into evidence over 

his objection.

STANDARDS OF REVIEW

In State v. Wenzel, 196 Neb. 255, 260, 242 N.W.2d 120, 

123 (1976), we stated that “[t]he disclosure of the name of the 

[confidential] informant was within the discretion of the trial 

judge.” In Wenzel, we relied mainly on federal case law to set 

forth standards relating to the decision whether the identity of a 

confidential informant should be disclosed, and we did not cite 

to § 27-510, which was enacted in 1975 and did not govern the 

trial court’s decision in Wenzel.

The decision whether to reveal the identity of a confidential 

informant is now governed by § 27-510, which is part of the 

rules of evidence and creates a privilege for the State to refuse 
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to disclose the identity of a confidential informant. The standard we generally apply on appeal when reviewing decisions 

regarding issues of admissibility under the rules of evidence 

is as follows: 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. 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. State v. Hill, 298 Neb. 675, 905 N.W.2d 

668 (2018).

[1] The language of § 27-510 guides and sets the parameters 

for a court’s decisions regarding whether the identity of an 

informer should be disclosed; certain determinations within 

§ 27-510 are based on judicial discretion. Applying these standards to § 27-510, we hold: The decision whether to reveal the 

identity of a confidential informant is controlled by § 27-510, 

and judicial discretion is involved only to the extent § 27-510 

makes discretion a factor in determining that question. Where 

§ 27-510 commits a question at issue to the discretion of the 

trial court, an appellate court reviews the trial court’s determination for an abuse of discretion.

[2] To the extent appellate review of a trial court’s decision whether to reveal the identity of a confidential informant 

involves interpretation of § 27-510, statutory interpretation 

presents a question of law, which an appellate court reviews 

independently of the lower court’s determination. State v. 

Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).

[3,4] Whether there is sufficient foundation evidence for 

the admission of physical evidence must necessarily be determined by the trial court on a case-by-case basis. State v. 

Smith, 292 Neb. 434, 873 N.W.2d 169 (2016). A trial court’s 

determination of the admissibility of physical evidence will 

not ordinarily be overturned except for an abuse of discretion. Id.
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ANALYSIS

District Court Did Not Err When It 

Overruled Blair’s Motion to Reveal 

Identity of Confidential Informant.

Blair claims that the district court erred when it overruled 

his motion to reveal the identity of the confidential informant. 

As we explained above, the court in its discretion overruled 

the motion based on its determination under § 27-510(3)(b) 

that the confidential informant did not have necessary testimony to offer regarding the issue of Blair’s guilt or innocence 

in connection with the charges still pending against him. We 

determine that the court did not abuse its discretion when 

it overruled the motion to reveal the informer’s identity on 

this basis.

As noted above, taken as a whole, § 27-510 creates a privilege for the State to refuse to disclose the identity of a confidential informant, as well as circumstances where the privilege 

must yield to other considerations.

Section 27-510(1) describes the privilege as follows:

The government or a state or subdivision thereof has a 

privilege to refuse to disclose the identity of a person 

who has furnished information relating to or assisting in 

an investigation of a possible violation of law to a law 

enforcement officer or member of a legislative committee 

or its staff conducting an investigation.

Subsection (2) of § 27-510 indicates who may claim the 

privilege.

Subsection (3) indicates certain circumstances in which 

the privilege is limited or must give way to other concerns. 

Subsection (3)(a) indicates that no privilege exists if the confidential informant appears as a witness or if the confidential informant’s identity has already been disclosed by either 

the confidential informant or the holder of the privilege to 

“those who would have cause to resent the communication.” 

Subsection (3)(b) provides procedures to address situations 

including, inter alia, where the confidential informant “may 
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be able to give testimony necessary to a fair determination of 

the issue of guilt or innocence in a criminal case.” Subsection 

(3)(c) provides procedures to address the situation in which 

“information from [a confidential informant] is relied upon 

to establish the legality of the means by which evidence was 

obtained” and the judge has reason to believe the informant’s 

information may not have been reliable or credible.

In the present case, there was no indication that the State 

planned to call the confidential informant as a witness and no 

indication that the identity of the confidential informant had 

been disclosed by the State or by the confidential informant. 

Therefore, subsection (3)(a) was not at issue. Also, Blair indicated at the hearing in this case that he was not specifically 

challenging the reliability or credibility of the confidential 

informant’s information for purposes of his motion to suppress. 

Therefore, subsection (3)(c) was not at issue.

Instead, Blair contends that the limitations on the privilege 

found in subsection (3)(b) of § 27-510 were applicable. Section 

27-510(3)(b) provides, in relevant part:

If it appears from the evidence in the case or from other 

showing by a party that an informer may be able to give 

testimony necessary to a fair determination of the issue of 

guilt or innocence in a criminal case . . . and the government invokes the privilege, the judge shall give the government an opportunity to show in camera facts relevant 

to determining whether the informer can, in fact, supply 

that testimony. The showing may be in the form of affidavits or testimony, as the judge directs. If the judge finds 

that there is a reasonable probability that the informer 

can give the testimony, and the government elects not to 

disclose his [or her] identity, the judge on motion of the 

defendant in a criminal case shall dismiss the charges to 

which the testimony would relate, and the judge may do 

so on his [or her] own motion.

Therefore, when the defendant in a criminal case moves 

for disclosure of the identity of a confidential informant, 
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§ 27-510(3)(b) sets up a series of steps to determine whether 

the identity may be disclosed or whether the State’s privilege 

should be honored.

As the first step under § 27-510(3)(b), the judge must determine whether it appears that the confidential informant may be 

able to give testimony necessary to a fair determination of the 

issue of guilt or innocence of the pending charges. If the testimony is not necessary, then the judge need proceed no further 

under § 27-510(3)(b) and may overrule the defendant’s motion 

on the basis that the identity of the confidential informant is 

not relevant to the charges against the defendant.

If, however, it does appear that the confidential informant 

may be able to give such testimony, then the government 

must decide whether to invoke the privilege afforded it under 

§ 27-510(1). If the government decides not to invoke the privilege, then the court may order disclosure.

If, however, the government invokes the privilege, then the 

judge must hold an in camera hearing to allow the government 

an opportunity to present facts relevant to show whether the 

confidential informant can in fact supply testimony necessary 

to a fair determination of the issue of guilt or innocence. If, 

based on the in camera hearing, the judge finds that there is 

not a reasonable probability that the informer can give the testimony, then the court may overrule the defendant’s motion to 

disclose the identity of the confidential informant.

If, however, the judge finds that there is a reasonable probability that the informer can give testimony that is necessary, 

then the government may elect to waive the privilege and 

disclose the identity of the confidential informant. If the government does not so elect, then the defendant may move to 

dismiss the charges to which the testimony would relate or the 

court may dismiss the charges on its own motion.

This understanding of the framework of how § 27-510(3)(b) 

operates factors into our review of the court’s ruling in which 

it denied Blair’s motion to reveal the identity of the confidential informant. In addition to arguing that the court erred in 
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determining as a substantive matter that it did not appear that 

the confidential informant could give testimony relevant to the 

charges against him, Blair also makes two procedural arguments regarding the district court’s alleged error in overruling 

his motion. First, he contends that the judge erred by failing 

to hold the in camera hearing identified in § 27-510(3)(b). 

Second, he contends that it was improper for the State to dismiss the drug charge in order to avoid disclosing the identity of 

the confidential informant. We find no merit to either of these 

procedural contentions.

As to the first procedural argument, we note that the court 

made the initial determination that it did not appear that the 

confidential informant “may be able to give” testimony necessary to a fair determination of the issue of guilt or innocence 

with respect to the charges that were still pending in this 

case—possession of a deadly weapon by a prohibited person 

and possession of a stolen firearm. Because the court made this 

initial determination, it did not need to go further than this first 

step under § 27-510(3)(b). An in camera hearing would have 

been required only if the court had found that it appeared the 

confidential informant “may be able to give” testimony regarding Blair’s guilt or innocence and the State had thereafter 

invoked its privilege. Thus, Blair’s assertion that an in camera 

hearing was required is without merit.

As to the second procedural argument, we do not find it 

improper that the State dismissed the drug charge before 

the court could order it to disclose the identity of the confidential informant. As we read the progression laid out in 

§ 27-510(3)(b), the State’s actions in this case were anticipated by the statute. When there is a reasonable probability 

that the confidential informant can give testimony necessary 

to a fair determination of the issue of guilt or innocence 

on a specific charge, then the State has the option to either 

waive its privilege and disclose the identity of its confidential informant or invoke the privilege and, thus as a practical 

matter, face the possibility of dismissal of the charges by 
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the court on its own motion or on the motion of the defendant. The ultimate relief that was available to Blair under 

§ 27-510(3)(b) was dismissal of the charge to which the 

confidential informant’s testimony would be necessary. By 

the State’s dismissal of that charge, Blair obtained that relief, 

and we do not find it improper for the State to have made 

the choice to maintain confidentiality of the informer and to 

dismiss the drug-related charge.

[5] Finally, we find no error in the court’s conclusion that it 

did not appear that the confidential informant in this case may 

be able to give testimony necessary to a fair determination of 

the issue of guilt or innocence on the charges still pending 

against Blair. This ruling was made under the initial step of 

§ 27-510(3)(b), which requires the court to use its judgment 

and thus exercise its discretion. We therefore review the ruling 

for an abuse of discretion.

At the time the court considered Blair’s motion, the charges 

remaining against Blair were for possession of a deadly weapon 

by a prohibited person and possession of a stolen firearm. The 

evidence relevant to those charges related to whether Blair 

was in possession of the gun found on the day of the search, 

whether he was a prohibited person on that day, whether the 

gun was stolen, and whether Blair knew the gun was stolen. 

There was no indication that the confidential informant had 

information relevant to any pending issue other than whether 

Blair had previously been in possession of a weapon. But 

even regarding possession, there was no indication that the 

confidential informant was present during the execution of the 

search warrant and therefore no indication he could provide 

information relevant to whether Blair was in possession of 

the gun on the day of the search. There was evidence that the 

confidential informant had previously observed Blair to be in 

possession of a “long gun” on an earlier date; however, such 

evidence was not relevant to and likely would not have been 

allowed in connection with the charges in this case stemming 

from possession of a handgun.
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STATE v. BLAIR

Cite as 300 Neb. 372

The court was correct in its assessment that although testimony of the confidential informant may have been necessary 

to a drug-related charge on the issue of intent, it would not be 

necessary to the charges that remained after dismissal of the 

drug-related charge. We determine that the district court did 

not abuse its discretion when it ruled that it did not appear 

that the confidential informant in this case may be able to give 

testimony necessary to a fair determination of the issue of guilt 

or innocence on the charges pending against Blair and when it 

therefore overruled Blair’s motion to reveal the identity of the 

confidential informant.

District Court Did Not Abuse Its 

Discretion When It Allowed 

Gun Into Evidence.

Blair also claims that the court erred when it admitted the 

gun into evidence over his objection. We conclude that the district court did not abuse its discretion when it determined that 

there was adequate foundation to allow the gun into evidence.

Whether there is sufficient foundation evidence for the 

admission of physical evidence must necessarily be determined 

by the trial court on a case-by-case basis. State v. Smith, 292 

Neb. 434, 873 N.W.2d 169 (2016). A trial court’s determination 

of the admissibility of physical evidence will not ordinarily be 

overturned except for an abuse of discretion. Id.

In this case, the gun was offered into evidence in connection with the testimony of Brown, who had found the gun 

during the search of the bedroom. Before offering the gun into 

evidence, the State showed the gun to Brown. Brown testified 

that it was the gun that he found in the bedroom and that he 

was able to identify the gun because it was the same make and 

model and, notably, it had the same serial number as the gun 

he had found. Brown further testified that the gun appeared to 

be in generally the same condition as it was when he found it. 

This testimony by Brown was sufficient to provide foundation 

for admission of the gun into evidence.
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Nebraska Supreme Court Advance S

300 Nebraska Report

STATE v. BLAIR

Cite as 300 Neb. 372

Blair’s objection at trial and his argument on appeal focus on 

a chain of custody and the alleged failure of law enforcement 

personnel to include the gun on the return and inventory that 

was prepared and filed after the search warrant was executed. 

It is generally understood that a “chain of custody for physical 

evidence may have to be established as part of the foundation 

for its admission as in cases where physical evidence is not 

readily identifiable or may be susceptible to tampering, contamination, or exchange.” 23 C.J.S. Criminal Procedure and 

Rights of Accused § 1150 at 598 (2016). However, a chain of 

custody is not logically necessary to establish the foundation of 

an item of physical evidence bearing a serial number or other 

unique identifier.

Rather than going to admissibility, we believe Blair’s argument goes to the weight to be accorded to the evidence. We 

have previously discussed this issue in State v. Bradley, 236 

Neb. 371, 461 N.W.2d 524 (1990). In Bradley, we concluded 

that where a witness at trial identified a gun offered into evidence as being the one he had retrieved from the defendant’s 

home, there was sufficient foundation to admit the gun into 

evidence and the defendant’s assertions regarding defects in the 

chain of custody went merely to the weight to be given to the 

evidence rather than to admissibility of the evidence.

We further note for completeness that in his “chain of custody” argument, Blair does not appear to assert that the gun 

may have been tampered with or altered. Instead, his argument regarding the failure to include the gun on the return and 

inventory relates more to whether law enforcement officers followed proper procedure in conducting the search. But Blair’s 

objection at trial and his assignment of error on appeal do not 

challenge the search or the court’s having overruled his motion 

to suppress evidence obtained in the search.

Brown’s testimony in this case provided sufficient foundation, because the gun was readily identifiable to him based on 

its make, model, and serial number. In addition, Brown was 

able to address concerns regarding tampering by testifying that 
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300 Nebraska Report

STATE v. BLAIR

Cite as 300 Neb. 372

the gun was in generally the same condition as when he found 

it. We conclude that the district court did not abuse its discretion when it admitted the gun into evidence.

CONCLUSION

We conclude that the district court did not err when it overruled Blair’s motion to reveal the identity of the confidential 

informant or when it admitted the gun into evidence. We therefore affirm Blair’s conviction and sentence for possession of a 

deadly weapon by a prohibited person.

Affirmed