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304 Nebraska Report

STATE v. HATFIELD

Cite as 304 Neb. 66

State of Nebraska, appellee, v.

Steven J. Hatfield, appell

___ N.W.2d ___

Filed September 13, 2019. No. S-18-1107.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

4. Pretrial Procedure: Appeal and Error. Trial courts have broad discretion with respect to sanctions involving discovery procedures, and 

their rulings thereon will not be reversed in the absence of an abuse of 

discretion.

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

generally controlled by either a statute or court rule.

Appeal from the District Court for Gage County: Julie D.

Smith, Judge. Affirmed

Steven J. Mercure, of Nestor & Mercure, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

Papik, JJ

Nebraska Supreme Court Online Library

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

10/25/2019 09:06 AM CDT
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304 Nebraska Report

STATE v. HATFIELD

Cite as 304 Neb. 66

Heavican, C

INTRODUCTION

Steven J. Hatfield was convicted of misdemeanor driving 

under the influence (DUI). His conviction and sentence were 

affirmed by the district court, sitting as an intermediate court 

of appeals. He appeals. We affirm.

BACKGROUND

Hatfield was convicted in the county court for Gage County 

of DUI and appealed that conviction to the district court for 

Gage County. The district court reversed the county court’s 

judgment based not on the arguments made by Hatfield, but 

instead upon the U.S. Supreme Court’s decision in Birchfield 

v. North Dakota.

1

 This court reviewed that decision and concluded that the good faith exception to the exclusionary rule 

applied to a pre-Birchfield warrantless blood draw and that the 

results of Hatfield’s blood test were therefore admissible.2 As 

such, we found that the district court, sitting as an appellate 

court, erred in reversing Hatfield’s conviction and vacating his 

sentence. We remanded the cause for the district court to consider Hatfield’s original errors.

Upon remand, the district court considered Hatfield’s assignment of error alleging that the county court erred in failing to 

exclude evidence that was offered by the State in violation of 

both the court’s June 29, 2015, order of discovery and Neb. 

Rev. Stat. § 29-1912 (Reissue 2016).

The facts relating to this discovery dispute are as follows: 

The county court entered an order of discovery on June 29, 

2015. That order was in response to an oral motion made 

at a pretrial hearing. The State had already filed a notice on 

February 3, 2015, indicating that it had complied with discovery consisting of 51 pages of documents and that other evidence was available for review with law enforcement or at the 

Gage County Attorney’s office.

1 Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 

560 (2016).

2 State v. Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).
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STATE v. HATFIELD

Cite as 304 Neb. 66

On November 4, 2015, Hatfield filed a motion entitled 

“Sixth Motion in Limine.” In that motion, Hatfield asserted 

that the State had failed to provide him with a witness list or 

with copies of “the Beatrice Community Hospital’s Clinical 

Laboratory Improvement Amendments” (CLIA) certificate. 

Hatfield also asserted that the State failed to provide him with 

a copy of title 177 of the Nebraska Administrative Code dealing with the testing of the alcohol content in blood and breath. 

Hatfield sought an order prohibiting the State from offering 

testimony of any witnesses and from offering as evidence the 

CLIA certificate or title 177.

Jury selection was held on November 5, 2015. After the 

jury was empaneled, the county court took up Hatfield’s sixth 

motion in limine. At the hearing, Hatfield argued that he had 

not received a list of witnesses the State intended to call, 

which he claimed was required under § 29-1912, and that 

he had not received a list of the specific written exhibits the 

State intended to offer at trial. As was noted in his written 

motion, Hatfield argued that the witnesses the State apparently 

intended to call should not be permitted to testify, because 

those witnesses had not been disclosed.

At no point during the course of this argument did Hatfield 

ask for a continuance. The State, however, did seek a continuance in the event the court was inclined to grant the sixth 

motion in limine, because in the State’s view, a continuance 

was the proper cure for delay of notification of witnesses. 

The county court ultimately denied the motion in limine, and 

trial began.

At the conclusion of the first day of trial, the county court 

indicated it wanted to revisit the sixth motion in limine. That 

issue was again addressed the morning prior to the second day 

of trial. Following arguments at which the parties offered case 

law in support of their respective positions, the court noted 

that it did not want to grant a continuance because the jury 

had already been empaneled and because in any case, barring 

the use of evidence was one remedy available but was not the 
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STATE v. HATFIELD

Cite as 304 Neb. 66

only remedy available, and that Hatfield had to show he was 

prejudiced by the failure to disclose. Because Hatfield was 

aware he was missing the information and could have sought 

it via a motion to compel rather than by a motion in limine 

filed just prior to trial (at 4:31 p.m. the day before trial was 

set to begin), he had not shown prejudice. As such, the county 

court noted its prior ruling on the sixth motion in limine 

stood. While the county court observed it was not going to 

continue the trial at that point, Hatfield did not ask for a continuance at any time during the proceedings or seek any relief 

besides complete exclusion of the evidence.

Hatfield also contends the State failed to disclose the conviction upon which it was relying to support a second-offense 

charge against Hatfield. The district court rejected this claim, 

noting that Hatfield was aware the complaint charged a second 

offense and that Hatfield had been provided with his driver’s abstract identifying by case number the prior DUI case. 

Hatfield was offered, but declined, a continuance in connection 

with this objection.

In this second appeal, the district court concluded that 

the county court had not erred, and it consequently affirmed 

Hatfield’s conviction and sentence. Hatfield now appeals that 

decision to this court.

ASSIGNMENTS OF ERROR

Hatfield assigns that the district court (1) erred in affirming the county court’s admission of evidence offered at trial 

that was not disclosed to him as was required by the court’s 

June 29, 2015, order and by § 29-1912 and (2) erred when 

sentencing him, because the prior conviction the court relied 

upon for a second offense was not disclosed to Hatfield prior 

to sentencing.

STANDARD OF REVIEW

[1-3] In an appeal of a criminal case from the county court, 

the district court acts as an intermediate court of appeals, and 

its review is limited to an examination of the record for error 
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STATE v. HATFIELD

Cite as 304 Neb. 66

or abuse of discretion.3 Both the district court and a higher 

appellate court generally review appeals from the county court 

for error appearing on the record.4 When reviewing a judgment 

for errors appearing on the record, an appellate court’s inquiry 

is whether the decision conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable.5

[4] Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon 

will not be reversed in the absence of an abuse of discretion.6

ANALYSIS

On appeal, Hatfield argues two separate incidents in which 

the State failed to disclose evidence. First, Hatfield contends 

the State failed to file witness and document lists despite being 

ordered to do so and that as such, its witnesses should not 

have been permitted to testify and certain documents—specifically the CLIA certificate and title 177 of the Nebraska 

Administrative Code—should not have been admitted into 

evidence. Hatfield also argues that the State did not provide a 

copy of a prior conviction sufficient to support a finding that 

Hatfield had previously been convicted of DUI.

[5] Discovery in a criminal case is generally controlled by 

either a statute or court rule.7 Nebraska’s principal discovery 

statute, § 29-1912, sets forth a list of evidence that may be 

subject to discovery at the discretion of the trial court. The list 

includes a defendant’s prior criminal record, the names and 

addresses of witnesses on whose evidence the charge is based, 

and documents, papers, books, accounts, photographs, objects, 

or other tangible things of whatsoever kind or nature which 

3 Id.

4 Id.

5 Id.

6 State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).

7 Id.
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could be used as evidence by the prosecuting authority.8 Neb. 

Rev. Stat. § 29-1919 (Reissue 2016) sets forth various remedies 

the court may employ when there is a claimed violation of a 

discovery order: The court may (1) order such party to permit 

discovery or inspection of materials not previously disclosed, 

(2) grant a continuance, (3) prohibit a party from calling a witness not disclosed or introduce evidence not disclosed, or (4) 

enter another order as it deems just under the circumstance. If a 

continuance would have been a sufficient remedy for a belated 

disclosure in violation of § 29-1912, a defendant who fails to 

request a continuance waives any rights he or she may have 

had pursuant to § 29-1912.9

Hatfield’s arguments are without merit. The record shows 

that by the time the county court ordered the parties to engage 

in discovery, the State had, over 3 months prior, forwarded 

51 pages of documents to Hatfield and informed him that still 

other evidence was available for his review at its offices or 

with law enforcement. That notice did not include a witness 

list. By the time the order for discovery was made, discovery 

had already taken place. There was no indication from a pretrial discussion about discovery, or the State’s notice, that the 

parties anticipated a forthcoming witness list.

Hatfield filed his sixth motion in limine 9 months after 

discovery first commenced. In that motion, he made specific 

reference to the witnesses and documentation he believed to 

be missing. At least as of that date, it was clear Hatfield was 

aware of what discovery he had not received, yet our record 

does not indicate that he filed a motion to compel or sought 

a continuance. Instead, in the late afternoon of the day before 

trial, Hatfield filed a motion in limine seeking to prevent the 

State from offering this evidence at trial.

While a court may order that a party not be permitted to offer 

evidence at trial which it failed to disclose, this court has stated 

8 § 29-1912.

9 See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
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a preference for a continuance in such situations.10 Despite having 9 months to do so, Hatfield failed to seek a motion to compel or a continuance. The same holds true for Hatfield’s prior 

conviction. A copy of Hatfield’s driver’s abstract was included 

in the discovery material provided to him, and a certified copy 

was offered at trial. Hatfield objected and was offered a continuance, but declined and stood on his objection.

The fact that Hatfield’s driver’s abstract—which listed the 

challenged prior conviction—was disclosed placed Hatfield on 

notice of the conviction the State planned to use to enhance 

his sentence. Hatfield could have investigated the conviction in 

more detail; he apparently chose not to do so. At the time of 

sentencing, not only did Hatfield not seek a continuance, but he 

declined one offered by the county court. In addition, the State 

noted at the sentencing hearing that a certified copy of the 

conviction had been available for review at its offices should 

Hatfield have chosen to review it in person.

We reject Hatfield’s claims due to his failure to seek a 

continuance, and we find no prejudice owing to any belated 

disclosures on the State’s part. Hatfield contends that because 

the State did not file a witness list, all its witnesses were 

effectively surprise witnesses. Specifically, Hatfield argues that 

Deputy Robert Sandersfeld and Investigator John Chavez of the 

Gage County sheriff’s office were surprise witnesses involved 

in the chain of custody of his blood sample test and that he 

was unable to prepare for these witnesses. But Hatfield does 

not show what different preparation he would have made or 

how that preparation would have changed the examination of 

Sandersfeld and Chavez, let alone the examination of all of the 

State’s witnesses. Moreover, we observe that the record shows 

that while a witness list was not provided, the identities of the 

witnesses the State ultimately called, including Sandersfeld 

and Chavez, were available in the discovery made or offered to 

Hatfield. This claim fails.

10 See id.
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STATE v. HATFIELD

Cite as 304 Neb. 66

We also reject Hatfield’s assertion regarding both title 177 

of the Nebraska Administrative Code and the CLIA certificate. 

Hatfield was charged with DUI. Title 177 is a public record 

routinely applied in such cases, and CLIA certificates are routinely referenced in cases involving laboratory testing. Hatfield 

exhibited that knowledge by referencing both in his motion in 

limine. Hatfield has not shown that he was prejudiced by the 

State’s belated disclosure of either.

Finally, we reject the assertion that Hatfield was prejudiced by the State’s failure to disclose and provide a copy of 

his prior DUI conviction for enhancement purposes. Hatfield 

was charged with second-offense DUI. The information filed 

against him referenced the same conviction he now complains 

was not disclosed to him. As noted above, Hatfield was provided with a copy of his driver’s abstract which included the 

now-challenged conviction.

We have consistently held that in discovery disputes where 

a continuance can cure any prejudice caused by a failure to 

disclose, it is that remedy that should be utilized. We reject 

Hatfield’s invitation to overrule that authority.

We review the lower court’s action for an abuse of discretion. Hatfield declined to ask for a continuance, declined to 

join in the State’s suggestion of a continuance at trial, and at 

sentencing declined to accept the court’s offer of a continuance. Hatfield has also failed to show that he was prejudiced 

by the State’s belated disclosures. Hatfield’s arguments on 

appeal are without merit.

CONCLUSION

We affirm the decision of the district court affirming the 

judgment and conviction of the county court.

Affirmed

Freudenberg, J., not participatin