Nebraska Advance Sheets

STATE v. VANDEVER 807

Cite as 287 Neb. 807

State of Nebraska, appellee, v. 

Wesley S. Vandever, appellant.

___ N.W.2d ___

Filed April 4, 2014. No. S-12-1023.

1. Trial: Juries: Evidence: Appeal and Error. A trial court’s decision to allow a 

jury during deliberations to rehear or review evidence, whether such evidence 

is testimonial or nontestimonial, is reviewed by an appellate court for an abuse 

of discretion.

2. Juries: Evidence. Heightened procedures are required when a court considers a 

jury’s request under Neb. Rev. Stat. § 25-1116 (Reissue 2008) to rehear testimony 

that was presented in the form of an audio or video recording.

3. Evidence: Case Disapproved. To the extent State v. Dixon, 259 Neb. 976, 

614 N.W.2d 288 (2000), indicated that the heightened procedures set forth 

therein were to be used in connection with nontestimonial recorded evidence, it 

is disapproved.

4. Trial: Testimony: Evidence: Words and Phrases. “Testimony” for purposes 

of Neb. Rev. Stat. § 25-1116 (Reissue 2008) encompasses evidence authorized 

as “testimony” under Neb. Rev. Stat. § 25-1240 (Reissue 2008), that is, as live 

testimony at trial by oral examination or by some substitute for live testimony, 

including but not limited to, affidavit, deposition, or video recording of an examination conducted prior to the time of trial for use at trial.

Appeal from the District Court for Scotts Bluff County: 

Randall L. Lippstreu, Judge. Affirmed.

Todd D. Morten, of Island & Huff, P.C., L.L.O., for 

appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for 

appellee.

Heavican, C.J., Connolly, Stephan, McCormack, MillerLerman, and Cassel, JJ.

Miller-Lerman, J.

NATURE OF CASE

Wesley S. Vandever appeals his conviction in the district 

court for Scotts Bluff County for possession of a controlled 

substance, methamphetamine. Vandever claims that the court 

erred when, during deliberations, it granted the jury’s request to 

rehear a recording of an investigator’s interview of Vandever. 

We find no error and, accordingly, affirm Vandever’s conviction and sentence.
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STATEMENT OF FACTS

In April 2012, drug task force investigators executed a 

search warrant at a house in Scottsbluff, Nebraska. Four individuals, including Vandever, were inside the house at the 

time of the search. Investigators found Vandever and two of 

the others sleeping on the floor of a room in the basement. 

They also found bags of methamphetamine and other items, 

including a “meth” pipe and a marijuana pipe, located near 

where Vandever was sleeping. Vandever was arrested, and he 

was taken to the Scottsbluff Police Department where he was 

interviewed by one of the investigators who had conducted 

the search.

The investigator who interviewed Vandever testified at trial 

regarding the search and the interview. In connection with 

the investigator’s testimony, the court admitted into evidence 

a compact disc containing an edited audio recording of the 

interview. Vandever did not object to admission of the recording, and the recording, which was approximately 8 minutes 

in length, was played for the jury. In the recorded interview, 

the investigator questioned Vandever regarding, inter alia, 

ownership of items found near him in the basement room. 

Vandever admitted that the marijuana pipe was his but denied 

that the “meth” pipe and the bags of methamphetamine were 

his. The investigator then asked Vandever, “Did you use last 

night? . . . Did you smoke a little?” Vandever replied, “Not a 

lot. Because obviously I was sleeping.” Vandever continued 

that he generally did not use a lot and that he was working on 

getting clean.

During deliberations, the jury sent a written note to the court 

stating, “Can we please listen to the 8 minute . . . interview 

again?” The note was signed by the presiding juror. The court 

wrote a response on the note stating, “I will allow to hear 

Exh 16 (C.D of the interview) only one more time.” After the 

judge’s signature, it stated, “P.S The bailiff will be present during the playing of the C.D. Do not resume your discussions 

until you return to jury room.” In a journal entry, the court 

stated that it had “honored the jury’s written request to rehear 

Exhibit 16 ([the investigator’s] interview of [Vandever]) over 

Defense Counsel’s objection.”
Nebraska Advance Sheets

STATE v. VANDEVER 809

Cite as 287 Neb. 807

The jury thereafter returned a verdict finding Vandever 

guilty of possession of methamphetamine. The court later sentenced Vandever to imprisonment for 300 days and payment of 

a $100 fine.

Vandever appeals his conviction.

ASSIGNMENT OF ERROR

Vandever claims that the court erred when it failed to hold 

a hearing to determine the purpose of the jury’s request, failed 

to make explicit findings, and allowed the jury to rehear the 

recording of the interview.

STANDARD OF REVIEW

[1] In cases involving testimonial evidence, we have stated 

that the decision to allow a jury to review or rehear evidence during deliberations is a matter within the trial court’s 

discretion. State v. Halsey, 232 Neb. 658, 441 N.W.2d 877 

(1989). In cases involving nontestimonial evidence, we have 

stated that trial courts have broad discretion in allowing 

the jury unlimited access to properly received exhibits that 

constitute substantive evidence. State v. Pischel, 277 Neb. 

412, 762 N.W.2d 595 (2009). Therefore, a trial court’s decision to allow a jury during deliberations to rehear or review 

evidence, whether such evidence is testimonial or nontestimonial, is reviewed by an appellate court for an abuse 

of discretion.

ANALYSIS

Vandever claims that the court erred when it allowed the 

jury to rehear the recording of the investigator’s interview 

of Vandever during the jury’s deliberations without adhering to the heightened procedures set forth in State v. Dixon, 

259 Neb. 976, 614 N.W.2d 288 (2000), disapproved on other 

grounds, State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012) 

(Dixon). Vandever specifically contends that the recording was 

testimonial evidence and that under the heightened procedures 

described in Dixon, when the jury seeks to rehear testimonial 

evidence, the court is required to conduct a hearing, make 

findings regarding the reason for the jury’s request, and weigh 

the probative value of replaying the recording against the 
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810 287 NEBRASKA REPORTS

danger of undue emphasis, before it can properly grant the 

jury’s request to rehear the recording.

As to the legal principles under consideration, the State 

argues in response that our reasoning in Dixon was flawed 

and that we should overrule Dixon. The State contends that 

the recording at issue in Dixon—a recording of a conversation between the defendant and a codefendant in which the 

defendant admitted to the crime charged—was not testimonial 

evidence but was instead substantive evidence of the crime 

and that therefore, the heightened procedures we espoused in 

Dixon for testimonial evidence were not applicable to the nontestimonial evidence in Dixon. As to the present case, the State 

argues that the recording at issue was substantive evidence 

not subject to the heightened procedures in Dixon and that 

therefore, it was consistent with the district court’s authority to 

permit exhibits into the jury room to allow the jury to rehear 

the recording during deliberations. According to the State, 

we need only review the district court’s ruling for an abuse 

of discretion.

Decision in Dixon.

In view of the parties’ contentions, we begin by examining 

our decision in Dixon to determine whether and to what extent 

it may be in need of clarification. Later in this opinion, we 

describe in greater detail our understanding of what constitutes 

“testimony,” sometimes referred to as “testimonial evidence.” 

As we explain later, testimony refers to trial evidence, including live oral examinations, affidavits and depositions in lieu of 

live testimony, and tapes of examinations conducted prior to 

the time of trial for use at trial in accordance with procedures 

provided by law. See, generally, Neb. Rev. Stat. §§ 25-1240 

and 25-1242 (Reissue 2008).

In Dixon, the defendant objected to the jury’s request during deliberations for a tape player that would allow the jury 

to listen to a recording of a telephone conversation between 

the defendant and a codefendant. In the conversation, the 

defendant was asked why he shot the victim and the defendant 

replied that he “‘just felt like blasting on him.’” Id. at 980, 

614 N.W.2d at 292. The trial court overruled the defendant’s 
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STATE v. VANDEVER 811

Cite as 287 Neb. 807

objection, and the jury was provided the recording and a tape 

player for unsupervised use in the jury room. Although we 

reversed the defendant’s convictions and resolved the appeal 

on other grounds, we considered the defendant’s assignment 

of error regarding the jury’s access to the recording during 

deliberations in order “to address the procedure by which such 

exhibits should be presented to the jury if properly admitted 

into evidence.” Id. at 986, 614 N.W.2d at 296.

In Dixon, we stated that “[t]he general rule is that allowing a jury to rehear only portions of the evidence after they 

have commenced deliberations is not to be encouraged, but 

it is a matter within the discretion of the trial court.” 259 

Neb. at 986-87, 614 N.W.2d at 296 (citing State v. Halsey, 

232 Neb. 658, 441 N.W.2d 877 (1989)). We then stated that 

specifically, with regard to testimonial evidence, “[t]he traditional common-law rule is that a trial court has ‘no discretion 

to submit depositions and other testimonial materials to the 

jury room for unsupervised review, even if properly admitted 

into evidence at trial.’” Id. at 987, 614 N.W.2d at 296 (quoting Chambers v. State, 726 P.2d 1269 (Wyo. 1986)). That is, 

such testimonial material should not be permitted in the jury 

room. However, in Dixon, we created heightened procedures 

by which testimonial evidence could be reheard by the jury 

during deliberations and described these heightened procedures as follows:

When a jury makes a request to rehear certain evidence, 

the common-law rule requires that a trial court discover 

the exact nature of the jury’s difficulty, isolate the precise testimony which can solve it, and weigh the probative value of the testimony against the danger of undue 

emphasis. If, after this careful exercise of discretion, 

the court decides to allow some repetition of the taperecorded evidence for the jury, it can do so in open court 

in the presence of the parties or their counsel or under 

other strictly controlled procedures of which the parties 

have been notified.

259 Neb. at 987, 614 N.W.2d at 297. In Dixon, we stated 

that these procedures were required by common law and 

cited Chambers for this proposition. Vandever asserts that the 
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812 287 NEBRASKA REPORTS

recording at issue in the instant case is testimonial and that 

the court was required but failed to follow these heightened 

procedures before it allowed the jury to rehear the interview 

recording of Vandever.

We make two initial observations about this portion of 

the Dixon opinion that are relevant to our consideration of 

whether Dixon remains sound and whether it applies to the 

instant case. First, in the Wyoming case to which we refer 

as the source for the heightened procedures, the Wyoming 

Supreme Court described such procedures as being required 

by statute rather than by common law. See Chambers, supra.

Second, although the heightened procedures were meant to 

apply specifically to “depositions and other testimonial materials,” see id. at 1275, our discussion of the procedures in 

Dixon infers that such procedures apply generally to any 

recorded form of verbal evidence. Both observations require 

further explanation.

In Dixon, we stated that the heightened procedures set 

forth therein were required by “the common-law rule” and 

we cited Chambers, supra, as the source for the procedures. 259 Neb. at 987, 614 N.W.2d at 296. However, the 

Wyoming Supreme Court in Chambers did not state that 

the procedures were derived from common law. Instead, in 

the context of determining whether it was appropriate for a 

court to allow the jury to view videotaped testimony during 

deliberations, the court in Chambers discussed a Wyoming 

statute which “permits a court to refresh the jury’s recollection of trial testimony under certain limited circumstances.” 

726 P.2d at 1275-76. The Wyoming court quoted the statute, 

which provides:

After the jurors have retired for deliberation, if there 

is a disagreement between them as to any part of the 

testimony, or if they desire to be informed as to any 

part of the law arising in the case, they may request the 

officer to conduct them to the court where information 

upon the matter of law shall be given. The court may 

give its recollection as to the testimony on the points in 

dispute, in the presence of or after notice to the parties 

or their counsel.
Nebraska Advance Sheets

STATE v. VANDEVER 813

Cite as 287 Neb. 807

Wyo. Stat. Ann. § 1-11-209 (2013). The Wyoming court in 

Chambers identified the statute, rather than a common-law 

rule, as the source requiring the heightened procedures to be 

employed when a court responds to a jury’s request during 

deliberations to rehear testimony that was presented in the 

form of an audio or video recording.

[2] We note that Nebraska has a similar statute, Neb. Rev. 

Stat. § 25-1116 (Reissue 2008), which provides as follows:

After the jury have retired for deliberation, if there be 

a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of 

the law arising in the case, they may request the officer 

to conduct them to the court where the information upon 

the point of law shall be given, and the court may give 

its recollection as to the testimony on the point in dispute in the presence of or after notice to the parties or 

their counsel.

To the extent the heightened procedures we set forth in Dixon

were based on the Wyoming court’s interpretation of its statute 

relating to the court’s ability to refresh the jury’s memory with 

regard to recorded testimony, then it was reasonable for this 

court in Dixon to similarly interpret § 25-1116 as also requiring such heightened procedures when a jury makes a request to 

rehear testimony that was presented through an audio or video 

recording. However, because our comments in Dixon relied 

on Chambers v. State, 726 P.2d 1269 (Wyo. 1986), it was not 

appropriate in Dixon to indicate that the heightened procedures 

were required under common law and to cite to Chambers

as authority therefor. Instead, we should have stated that the 

heightened procedures were implicitly required under statute 

when the court considers a jury’s request under § 25-1116 to 

rehear testimony that was presented in the form of an audio or 

video recording.

We next note that although the Wyoming case, Chambers,

supra, was specifically concerned with whether the jury could 

rehear recorded testimony, our discussion of the heightened 

procedures in Dixon was more expansive and made it appear 

that the procedures outlined in Dixon applied to any sort of 

verbal recording entered into evidence, whether or not that 
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814 287 NEBRASKA REPORTS

evidence was testimonial. As discussed above, the heightened 

procedures set forth in Dixon are a reasonable interpretation 

of how § 25-1116 should be applied when the jury’s request 

relates to recorded testimony. Because the statute is concerned with testimony, the heightened procedures outlined 

in Dixon should apply only when the recording at issue contains testimonial evidence. The heightened procedures should 

not apply to nontestimonial evidence merely because such 

evidence is verbal in nature and is contained in an audio or 

video recording.

In case law subsequent to Dixon, we have noted a distinction between testimonial evidence and other types of evidence. For example, in State v. Pischel, 277 Neb. 412, 427, 

762 N.W.2d 595, 607 (2009), we stated both that “a trial court 

has no discretion to submit testimonial materials to the jury 

for unsupervised review during deliberations” and that “trial 

courts have broad discretion in allowing the jury to have 

unlimited access to properly received exhibits that constitute 

substantive evidence of the defendant’s guilt.” In Pischel, we 

rejected the defendant’s argument that the heightened procedures in Dixon applied to the district court’s decision to 

allow the jury access during deliberations to transcripts of the 

defendant’s online conversations with a minor girl in a prosecution for use of a computer to entice a child or a peace officer believed to be a child for sexual purposes. We reasoned in 

Pischel that “the transcripts of online conversations were not 

testimonial material but instead were substantive evidence of 

[the defendant’s] guilt.” 277 Neb. at 427-28, 762 N.W.2d at 

607. We note in this regard that the Wyoming Supreme Court 

has similarly made a distinction between testimonial recordings and recordings admitted as nontestimonial exhibits when 

applying Chambers, supra. See Munoz v. State, 849 P.2d 1299 

(Wyo. 1993).

This distinction between testimonial materials and other 

evidence was not made clear in Dixon, because we referred 

simply to “recordings” rather than “recordings of testimony.” 

The distinction was blurred further because the evidence at 

issue in Dixon was not testimonial. Instead, the evidence was 

a recording of the defendant’s conversation with a codefendant 
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STATE v. VANDEVER 815

Cite as 287 Neb. 807

which the defendant did not know was being recorded and did 

not know would be used at a trial. Therefore, the heightened 

procedures applicable to evidence embodied in a recording of 

testimony outlined in Dixon were not applicable to the evidence at issue in that case.

[3] As noted above, the defendant’s convictions in Dixon

were reversed based on issues unrelated to the recording 

that was played for the jury. Therefore, the discussion of the 

heightened procedures in Dixon did not determine the disposition of the case but instead was intended to provide guidance 

to the trial court on remand. However, as we noted above, the 

discussion of the heightened procedures in conjunction with 

the discussion of specific evidence at issue in Dixon unintentionally implied that the procedures were to be used in connection with any evidence that is presented in the form of an 

audio or video recording, whether testimonial or not. To the 

extent Dixon indicated that the heightened procedures set forth 

therein were to be used in connection with nontestimonial 

recorded evidence, it is disapproved. The procedures set forth 

in Dixon implementing § 25-1116 are applicable only when 

a jury has requested to have its memory refreshed regarding 

testimonial evidence.

Parties’ Contentions and 

Our Resolution.

As we understand it, Vandever argues that the jury’s request 

was implicitly subject to § 25-1116, the recording was testimonial evidence, and the court erred when it failed to strictly 

adhere to the heightened procedures described in Dixon. The 

State argues in response that the recording was substantive evidence of the crime, nontestimonial in nature, and that the court 

had discretion to allow the jury unlimited access to the recording and to rehear it without being required to follow the heightened procedures set forth in Dixon. We determine that the evidence at issue in this case was not testimony and that therefore, 

the jury’s request was not made pursuant to § 25-1116 and the 

heightened procedures were not required.

We note initially that the determination of whether evidence 

is “testimony” for purposes of § 25-1116 is not the same 
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as the determination of whether a statement is “testimonial” 

for purposes of Confrontation Clause analysis. See State v. 

Hembertt, 269 Neb. 840, 850, 696 N.W.2d 473, 481-82 (2005) 

(stating that “whether particular evidence is ‘testimonial,’ for 

Confrontation Clause purposes, may be quite different from 

whether it is ‘testimonial’ as that word is used in other contexts” and citing Dixon as an example of such other contexts). 

Therefore, our analysis of whether evidence is “testimony” for 

purposes of § 25-1116 is not guided by, and should not serve 

as guidance for, an analysis of whether a statement is “testimonial” for Confrontation Clause purposes.

As discussed above, the heightened procedures set forth in 

Dixon are required only when the jury has made a request with 

regard to testimony pursuant to § 25-1116. Section 25-1116 is 

found in the Nebraska statutes pertaining to civil procedure. 

“Testimony” as used in § 25-1116 is not defined. We therefore must explain the meaning of “testimony” in § 25-1116 

and determine whether the recording at issue in this case 

was “testimony” within the meaning of § 25-1116. Although 

we have not explicitly set forth a definition of “testimony” 

for purposes of § 25-1116, we have applied the statute with 

respect to the reading of a deposition during deliberations, see 

Bakhit v. Thomsen, 193 Neb. 133, 225 N.W.2d 860 (1975), as 

well as the reading of an official court reporter’s record of live 

testimony, see Shiers v. Cowgill, 157 Neb. 265, 59 N.W.2d 

407 (1953), and Graves v. Bednar, 171 Neb. 499, 107 N.W.2d 

12 (1960).

[4] Elsewhere in the statutory chapter pertaining to civil 

procedure, we note that § 25-1240 provides that the “testimony of witnesses may be taken in four modes: (1) By affidavit; (2) by deposition; (3) by oral examination, and (4) by 

videotape of an examination conducted prior to the time of 

trial for use at trial in accordance with procedures provided by 

law.” We read “testimony” under § 25-1240 as including oral 

testimony as well as verbal evidence presented in other modes 

as a substitute for oral testimony. We take guidance from 

§ 25-1240, and we determine that “testimony” for purposes 

of § 25-1116 encompasses evidence authorized as “testimony” 

under § 25-1240, that is, as live testimony at trial by oral 
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STATE v. VANDEVER 817

Cite as 287 Neb. 807

examination or by some substitute for live testimony, including but not limited to, affidavit, deposition, or video recording 

of an examination conducted prior to the time of trial for use 

at trial. For completeness, we note that videotaped depositions 

are statutorily included in the definition of “deposition” in 

§ 25-1242.

In the present case, the recording of the investigator’s interview of Vandever, although verbal in nature, was not prepared 

as or admitted into evidence as a substitute for live testimony 

at trial. In the language of § 25-1240, it was not “an examination conducted prior to the time of trial for use at trial in 

accordance with procedures provided by law.” Instead, we 

determine that the interview was admitted as nontestimonial 

evidence. Therefore, the jury’s request to rehear the 8-minute 

investigator interview recording was not a request relating to 

“testimony” made pursuant to § 25-1116, and the heightened 

procedures set forth in Dixon were not required. As a consequence, we need not comment on whether the procedure followed by the district court was or was not adequate under the 

heightened procedures. The court did not abuse its discretion 

when it did not follow heightened procedures before allowing the jury to rehear the recording, and we therefore find 

Vandever’s assignment of error to be without merit.

CONCLUSION

We determine that the evidence at issue in this case was 

not testimony and that therefore, the heightened procedures 

for a jury request for “any part of the testimony” pursuant 

to § 25-1116 were not required. We conclude that the district 

court did not abuse its discretion when it allowed the jury to 

rehear the 8-minute recording of the investigator’s interview of 

Vandever. We therefore reject Vandever’s assignment of error, 

and we affirm his conviction and sentence.

Affirmed.

Wright, J., participating on briefs.