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Court of Appeals of Nebraska.

The district court found the State did not have the intent to goad Williams into moving for mistrial, and the court denied Williams' plea in bar and her motion for other relief. Williams timely appealed. Williams asserts the district court erred in overruling her motion for plea in bar. She also asserts the district court erred in denying her motion for other relief.

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State v. Arizola, Neb. On a question of law, an appellate court reaches a conclusion independent of the court below. Russell, Neb. The parties do not dispute the propriety of the mistrial. The issue is whether concepts of double jeopardy bar a retrial and, thus, whether the court should have granted Williams' plea in bar. Muhannad II. In Oregon v.

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Kennedy, U. Kennedy beyond situ-ations where the prosecutor intended that misconduct would provoke a mistrial. It is the defendant's burden to prove this intent, and the trial court's finding regarding whether the prosecuting attorney intended to cause a mistrial is a finding of fact.

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Muhannad I. Williams asserts that the court erred in overruling her plea in bar because there was sufficient evidence that the State failed to disclose evidence to the defense with the intent to provoke the defense to move for a mistrial. See brief for appellant at 6. She asserts the prosecutor deliber-ately courted a mistrial, making normal sanctions inadequate. These factors included, but were not limited to, the following: 1 whether there was a sequence of overreaching or error prior to the errors resulting in the mistrial; 2 whether the prosecutor resisted the motion for mistrial; 3 whether the prosecutor testified, and the court below found, that there was no intent to cause a mistrial; 4 the timing of the error; 5 whether the record contains any indication that the prosecutor believed the defendant would be acquitted; 6 whether a second trial would be desirable for the government; and 7 whether the prosecutor proffered some plausible justification for his or her actions.

See Muhannad I. In this case, the district court considered each of those factors and determined that the evidence was insufficient to support a finding that the State failed to make its disclosure to the defendant with the intent to goad the defense into moving for a mistrial.

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The court stated that the prosecutors proffered what they believed to be a plausible justification for their failure to timely disclose the newly discovered information—they believed that the information could be reserved for rebuttal. The court noted that this belief was mistaken and resulted in inaccurate information continually being presented to the jury. The court found that although the failure to disclose the information did constitute misconduct, it did not meet the narrow and rigorous standards set out in Oregon v.

Brief for appellant at 9. The record before us contains no evidence of any such admonitions. It is incumbent upon an appellant to supply a record which supports his or her appeal. Boche, Neb. Absent such a record, as a general rule, the decision of the lower court as to those errors is to be affirmed.

Upon our review, the record supports the trial court's con-clusions. The record before us does not demonstrate a sequence of overreaching or error prior to the error resulting in the mistrial. The prosecutors submitted affidavits stating that they had no intention of causing a mistrial and that they believed the evidence was sufficient to gain a conviction.

It does not appear from the record that the State intentionally committed prosecutorial misconduct or intended that such conduct would provoke a mistrial. Therefore, we find that the district court's determination was not clearly erroneous and that Williams' plea in bar was properly denied. As previously discussed, the district court determined that, because the State did not act with the intent to provoke a mistrial, the motion for other relief must also fail and be denied. 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.

So, while sanctions could have been ordered, the district court chose not to order them, and we find no abuse of discretion in denying Williams' motion for other relief.

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For the foregoing reasons, we affirm the judgment of the trial court denying Williams' plea in bar and her motion for other relief. By submitting this form, you agree to FindLaw. We respect your privacy. Thank you for subscribing! Just enter a name: First Name. Last Name. Search Public Records. La Vista. Assault 8 68 37 59 30 28 33 51 Robbery 4 12 17 20 10 17 35 25 Property Crimes Burglary 46 Larceny Vehicle Thefts 39 Arson 4 17 17 12 13 12 7 6.

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