Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/13/2019 08:06 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
STATE v. SCHRAMM
Cite as 27 Neb. App. 450
State of Nebraska, appellee, v.
Michael T. Schramm, appellant.
___ N.W.2d ___
Filed July 30, 2019. No. A-18-738.
1. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the
discretion of the trial court and will not be disturbed on appeal absent
an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
3. Motions for Continuance: Appeal and Error. The failure to comply
with the provisions of Neb. Rev. Stat. § 25-1148 (Reissue 2016) is but
a factor to be considered in determining whether a trial court abused its
discretion in denying a continuance.
4. Motions for Continuance. A continuance must be granted to allow
defense counsel adequate time to prepare a defense.
5. Constitutional Law: Criminal Law: Pretrial Procedure: Evidence.
A criminal defendant has constitutional and statutory rights which mandate the timely disclosure of the State’s evidence in a criminal case.
6. Pretrial Procedure: Evidence. Neb. Rev. Stat. § 29-1912(2) (Reissue
2016) requires the State, upon request, to disclose evidence that is material to the preparation of a defense.
7. Motions for Continuance: Appeal and Error. There is no abuse of
discretion by a court in denying a continuance unless it clearly appears
that the defendant suffered prejudice as a result thereof.
8. Double Jeopardy: Evidence: New Trial: Appeal and Error. The
Double Jeopardy Clause does not forbid a retrial so long as the sum of
all the evidence admitted by a trial court, whether erroneously or not,
would have been sufficient to sustain a guilty verdict.
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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
STATE v. SCHRAMM
Cite as 27 Neb. App. 450
9. Expert Witnesses: Appeal and Error. The standard for reviewing the
admissibility of expert testimony is abuse of discretion.
10. Trial: Expert Witnesses. Under the principles set forth in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786,
125
L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop,
262 Neb. 215,
631 N.W.2d 862 (2001), the trial court acts as a gatekeeper to ensure the
evidentiary relevance and reliability of an expert’s opinion.
11. Pretrial Procedure: Expert Witnesses. A challenge to the admissibility
of evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579,
113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215,
631 N.W.2d 862 (2001), should take
the form of a concise pretrial motion. It should identify, in terms of
the Daubert/Schafersman factors, what is believed to be lacking with
respect to the validity and reliability of the evidence and any challenge
to the relevance of the evidence to the issues of the case.
12. Jury Instructions: Judgments: Appeal and Error. Whether jury
instructions given by a trial court are correct is a question of law. When
dispositive issues on appeal present questions of law, an appellate court
has an obligation to reach an independent conclusion irrespective of the
decision of the court below.
13. Jury Instructions: Appeal and Error. In an appeal based on a claim
of an erroneous jury instruction, the appellant has the burden to show
that the questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
14. ____: ____. All the jury instructions must be read together, and if,
taken as a whole, they correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
15. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s refusal to
give the tendered instruction.
16. Jury Instructions. Whenever an applicable instruction may be taken
from the Nebraska Jury Instructions, that instruction is the one which
should usually be given to the jury in a criminal case.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Reversed and remanded for a new trial.
Matthew K. Kosmicki for appellant.
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Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
STATE v. SCHRAMM
Cite as 27 Neb. App. 450
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
R iedmann, A rterburn, and Welch, Judges.
A rterburn, Judge.
I. INTRODUCTION
Pursuant to a jury verdict, Michael T. Schramm was convicted in the district court for Lancaster County of strangulation and sentenced to 2 years’ imprisonment followed by 12
months’ postrelease supervision. Schramm appeals from his
conviction and sentence. On appeal, he alleges that the district court erred in denying his motion to continue the trial so
that he could obtain his own expert witness, in permitting the
State’s expert witness to testify over his objections, in instructing the jury, and in imposing an excessive sentence. For the
reasons set forth herein, we find that the district court abused
its discretion in denying Schramm’s motion to continue the
trial. Schramm should have been provided with additional time
to attempt to find his own expert witness. As a result of our
finding, we must reverse Schramm’s conviction and remand
the cause for a new trial.
II. BACKGROUND
On November 1, 2017, the State filed an information charging Schramm with strangulation, in violation of Neb. Rev. Stat.
§ 28-310.01 (Reissue 2016), a Class IIIA felony. The charge
against Schramm stemmed from an incident between Schramm
and his then girlfriend, J.K., which occurred in the early morning hours of August 28, 2017.
J.K. is a citizen of the Czech Republic. Beginning in 2014,
she began spending time in Lincoln, Nebraska, after obtaining a student visa. She completed a semester of classes at the
University of Nebraska-Lincoln and had an internship. When
her student visa expired, she went home to the Czech Republic,
but later obtained a tourist visa and returned to Lincoln. While
J.K. was in Lincoln, she met Schramm through mutual friends.
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STATE v. SCHRAMM
Cite as 27 Neb. App. 450
The two began a romantic relationship in February or March
2016. Schramm testified that “immediately we fell in love
and she moved in with me.” During their relationship, J.K.
went back and forth between Lincoln and the Czech Republic.
When she was in the Czech Republic, Schramm would come
to visit her there.
By August 2017, J.K. was back in Lincoln and was living with Schramm at his home. J.K. was not employed, but
Schramm had his own business buying and selling video games
online. On the afternoon of August 27, 2018, Schramm surprised J.K. by taking her on a day trip to Omaha, Nebraska, to
visit a zoo. On their way to Omaha, they stopped at a shopping
center where Schramm bought J.K. a new purse. They then
traveled the rest of the way to the zoo where they stayed until
it closed. After leaving the zoo, J.K. and Schramm went to a
bar in Omaha where they each had at least one alcoholic beverage. J.K. then drove them back to Lincoln. Schramm testified
that on the drive back to Lincoln, they were “[m]adly in love.”
They arrived home around 10 or 11 p.m., consumed more alcohol, and then decided to go to a local bar. At the bar, both J.K.
and Schramm continued to drink alcohol. They left the bar at
2 a.m. and returned to Schramm’s house.
When they returned to Schramm’s house, J.K. and Schramm
engaged in a verbal argument regarding Schramm’s business
and his ability to earn an income. J.K. testified at trial that
during the verbal argument, Schramm indicated that he wanted
to buy a new house and that he believed he could quickly
obtain enough money to do so by selling all of his video
game inventory. She indicated that he also began to insult and
disparage her regarding her financial situation, including making comments that she did not have a job and that she still
received financial support from her parents. Schramm then
went upstairs to play video games. J.K. explained that she
was upset with Schramm and did not like his exaggerations
about the success of his business. So, out of anger, she yelled
up the stairs to Schramm, telling him that he did not earn
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STATE v. SCHRAMM
Cite as 27 Neb. App. 450
enough money to be able to buy a new house and that she did
not believe what he had said about his ability to earn so much
money so quickly. J.K. admitted that she knew these comments
would make Schramm mad.
J.K. indicated that Schramm, in fact, became very upset by
her comments. She heard him yell that “this is enough, I am
going to kill you.” She then heard him start to run toward the
stairs, so she started to run downstairs to the basement to hide
from him. When she got to the landing of the basement steps,
she became worried that Schramm would laugh at her for
being scared, so she pretended to get food for their dogs on a
shelf above the landing. While her back was turned, J.K. heard
Schramm open the basement door. She felt him push her in the
back, and she fell the rest of the way down the basement stairs,
landing against a mattress that was propped up against the wall
of the basement. She started to cry and attempted to stand up.
Schramm ran down the stairs after her, grabbed her neck with
his left hand, pulled her to a standing position, and pushed her
head against the wall. Schramm told her, “this is enough” and
“I am going to kill you this time.” J.K. described Schramm as
looking her straight in the face, with eyes that “were violent,”
while “[g]rinding” his teeth.
J.K. testified that while Schramm had his hand around her
neck, she felt pressure. She tried to tell Schramm that he was
hurting her, but she was unable to talk and unable to breathe.
J.K. described that as the pressure around her neck continued,
she started to panic and realized she needed to fight back. She
testified that she was very scared and knew that she might die.
She pulled Schramm’s hair so that his head was very close to
her face and bit his ear as hard as she could. J.K. was then
able to get free from Schramm’s grasp. She ran up the stairs
and out the main door of the house, without stopping to grab
her purse or her cellular telephone. She ran to a neighbor’s
house and banged on the door until someone answered. The
neighbor called police. J.K. testified that she chose this neighbor to run to, even though she knew he had “issues” with
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STATE v. SCHRAMM
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police, because her other neighbor was friends with Schramm
and she believed he might not help her.
When police arrived, they spoke with J.K. about what had
occurred. One of the first officers on the scene, Officer Jesse
Orsi, contacted J.K. first. He described J.K. as crying and
being unable to speak. She had her hands up by her neck,
“doing a gesture as if she was choking herself,” and was also
pointing at Schramm’s house. Eventually, J.K. spoke in a voice
that Orsi described as not being “normal” and sounding “soft
[and] broken.” All she was able to say was, “my boyfriend.”
Orsi understood J.K. to be trying to explain that “her boyfriend
choked her.”
Officer Robert Hallowell spoke with J.K. next. He indicated that upon his arrival, J.K. was “frantic” and was crying. She had leaves in her hair and was speaking very fast.
J.K. told Hallowell that she had been pushed down the stairs
and strangled during a fight with her boyfriend. J.K. also
told him that the fight was her fault, because she had made
comments which she knew would upset Schramm. Hallowell
observed various injuries on J.K., including “extremely bloodshot eyes,” which, in his opinion, were caused by more than
just her consumption of alcohol; some redness to both sides of
her neck around the area of her clavicle bones; a small bump
on the back of her head; and abrasions on her elbow and on
her knee. His photographs of these injuries were offered into
evidence by the State. J.K. declined any medical treatment for
her injuries.
Hallowell also photographed the area in the basement where
J.K. described the assault as occurring. These photographs
depict a “steep” staircase with a mattress propped up at the
bottom of the staircase. Close up pictures of the wall of the
basement near the staircase appear to show long blond hairs to
be stuck “within [the] rough texture on the [basement] wall.”
According to Hallowell, these hairs “were consistent with coming from [J.K.’s] head.” The photographs also depict leaves
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STATE v. SCHRAMM
Cite as 27 Neb. App. 450
on the basement floor which appear to be consistent with the
leaves seen in J.K.’s hair.
At trial, Schramm testified in his own defense and described
a much different series of events after he and J.K. returned
from the bar in the early morning hours of August 28, 2017.
Schramm testified that he and J.K. actually began arguing in
the car on the way home from the bar. He explained that he
was upset with J.K. because she had been talking to “an old
interest” while they were at the bar. He told her that he was
not happy with her and was jealous because of her behavior. When they got home, Schramm explained that J.K. “got
aggressive.” He went on to testify, “She was bored with the
house and she did not like or think my job was a real thing.
And she brings it up. So she brought it up about that I need
to stop doing something besides sitting in the house and selling video games all day.” Schramm indicated that he did not
engage in the argument with J.K. Instead, he asked her why
she “always [was] so mean” to him. She responded by telling
him, “[Y]ou have no idea how many times I have cheated on
you.” She then ran down the basement stairs, stopping on the
second to the last step.
Schramm followed J.K. down the basement stairs, asking her to repeat what she had just told him. When she
turned around to address him, she lost her footing and leaned
back into the mattress at the bottom of the staircase. As he
approached her, she hit him three times on the head with a
closed fist, without saying anything to him. She then pulled
his hair and pressed her fingers into his face. He pushed her
away from him, placing his hands at her clavicle bones. As she
moved away from him, she continued to hold on to his hair,
and she pulled some hair out of his head. Schramm testified
that he never squeezed J.K.’s throat and that J.K. did not bite
his ear. She did run upstairs and outside, however. Schramm
explained that he did not immediately follow her, because he
was trying to give her some “space” so that she could calm
down. Schramm watched as J.K. ran to a neighbor’s house.
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STATE v. SCHRAMM
Cite as 27 Neb. App. 450
He testified they did not get along with that neighbor and
were “terrified” of him.
Schramm offered into evidence a picture of himself, which
he explained was taken close in time to J.K.’s assault of him.
The pictures do not depict any obvious injury to his ear.
After Schramm was arrested and transported to jail, he called
J.K.’s cellular telephone. A recording of this call was offered
into evidence. During the conversation, Schramm told J.K.
that he could call only one telephone number and that because
he called her, he could not call anyone else. He repeatedly
begged her to call his father and instructed her to write down
his father’s telephone number. J.K. refused. She told Schramm
that he “almost killed [her].” Schramm did not deny this, but
said that he is “going to be in jail for a very long time.” He
also told J.K. that “all [she] ha[d] to do [was] show up at court
at 12:00.” He instructed her to “say that I didn’t,” but then his
voice trailed off.
During Schramm’s trial testimony, he admitted that contrary to his statements to J.K. during the telephone call, he
made calls to people other than J.K., including his mother,
while he was in jail. In addition, Hallowell testified that in the
“book-in area” at the jail, there are two telephones available
for the prisoners’ use. Prisoners are permitted to make as many
telephone calls as they want to as many telephone numbers as
they want, all free of charge. Schramm further explained that
he called J.K. because he loved her and that he asked her to
call his father because he could not remember his father’s telephone number. Schramm was unable to explain how he could
provide J.K. with his father’s telephone number if he did not
remember it.
During the trial, the State offered the testimony of Susan
Michalski as an expert witness on domestic violence and
strangulation. Schramm objected to Michalski’s testimony on
various grounds, which we will address more thoroughly in
our analysis below, but the district court overruled all of
Schramm’s objections and permitted Michalski to testify.
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STATE v. SCHRAMM
Cite as 27 Neb. App. 450
At trial, Michalski testified regarding her extensive experience with domestic violence. Michalski is a licensed registered nurse who is self-employed in “training, education,
nursing activities and consulting in criminal justice cases,”
including cases involving domestic assault, strangulation, custody, and sexual assault. For the 12 years prior to her starting
her own business, Michalski served as the training and education director for a domestic violence coordinating council
in Omaha. She has received specialized training related to
conflict management, strangulation, and domestic violence.
As an educator, Michalski has given training sessions and
symposiums regarding domestic violence, and specifically
strangulation. Michalski also testified that she provides training for law enforcement, members of the criminal justice
system, medical students, hospital personnel, and members of
the community in the Omaha and surrounding areas. Through
her work, Michalski has had articles published twice and has
come into contact with several thousand victims of domestic violence.
Michalski explained that domestic violence involves the
power and control that one partner exerts over another in an
intimate relationship. It can include “a variety of different
tactics of abuse [that] can range from emotional, psychological to physical and sexual kinds of abuse and violence.”
Additionally, domestic violence can involve one partner isolating the other partner.
Michalski further explained that there were particular characteristics that define victims of domestic violence, including minimization of the abuse, denial of being in such a
relationship, and feelings of isolation. Victims often blame
themselves for the abuse, believing that if they had handled
a situation differently, the partner would not have gotten so
upset. And while victims often want the abuse to end, they
may not want the relationship to end. As such, they are willing to forgive and do not want their partner to go to jail or get
into trouble.
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STATE v. SCHRAMM
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There are often characteristics of offenders, as well, such
as getting involved romantically and seriously very early on
in the relationship, exhibiting controlling behaviors which are
initially masked as a sense of concern, and minimizing and
denying accountability for behaviors. Offenders often blame
the victims, making them feel bad or guilty about what has
happened. In fact, Michalski explained that if an offender is
arrested and taken to jail, they will often call their victim, asking the victim to accept responsibility for the situation and to
“fix” the problem. Michalski also testified that offenders often
act differently in public than they do in private so that it is very
hard to identify them as someone who is abusive or violent in
their relationships.
Michalski further testified about strangulation and how the
act of strangulation is generally carried out. She explained
how little pressure is necessary to start affecting the blood
and oxygen flow to and from the brain. Michalski testified
that the medical signs and symptoms of strangulation can
vary; however, most of the time there are few, if any, obvious bodily injuries. There can be bruising, scratches, or redness on the neck, coughing or wheezing, confusion, pain in
the neck area, difficulty swallowing, or the occurrence of
urination. Other possible signs of strangulation are “petechial hemorrhage” and “linear vascular congestion.” Michalski
defined the term “petechial hemorrhage” as “small flat red
areas or dots that are caused from pressure when the neck is
squeezed.” She indicated that, often, “the best place to see
petechiae . . . is in the whites of the eyes or anywhere above
the level of where the compression has occurred.” She defined
the term “linear vascular congestion” as the breaking of blood
vessels due to pressure being exerted on the neck, which
would be most noticeable in the eyes. Michalski emphasized
that strangulation is potentially lethal. Despite the seriousness of strangulation, many victims will not report having
been strangled because they feel better very quickly after the
pressure is released from their neck and because, due to the
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STATE v. SCHRAMM
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lack of oxygen, victims can sometimes suffer from a loss
of memory.
Michalski testified that she had neither met with nor
interviewed J.K. or Schramm. She had also not read any
police reports about the August 28, 2017, incident. However,
Michalski had viewed four photographs taken of J.K.’s eyes
shortly after the incident, although Michalski testified that
she did not know that the photographs were of J.K.’s eyes.
Michalski explained that in the photographs, she observed
linear vascular congestion, which can be consistent with strangulation. However, Michalski explained that things other than
strangulation can cause linear vascular congestion, including
sneezing, coughing very hard, or “anything that creates a pressure.” In order to determine with precision the exact cause of
linear vascular congestion, a medical professional would have
to know a person’s medical history and have an understanding
of a person’s current circumstances. During cross-examination,
Michalski admitted that an exact cause of linear vascular congestion could not be determined by merely looking at a few
photographs. In addition, she explained that she is not qualified to determine an exact cause of linear vascular congestion
because she is not a diagnosing physician.
After hearing all of the evidence, the jury found Schramm
guilty of strangulation. The district court ordered a presentence
report to be completed and subsequently sentenced Schramm
to 2 years’ imprisonment followed by 12 months’ postrelease
supervision.
Schramm appeals his conviction and sentence here.
III. ASSIGNMENTS OF ERROR
On appeal, Schramm assigns four errors. He alleges that the
district court erred in denying his motion to continue the trial
so that he could obtain his own expert witness, in permitting
Michalski to testify as an expert on domestic violence and
strangulation over his objections, in instructing the jury, and in
imposing an excessive sentence.
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STATE v. SCHRAMM
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IV. ANALYSIS
1. Schramm’s Motion to Continue Trial
(a) Additional Background
On March 19, 2018, approximately 3 weeks before trial was
to begin, the State filed a motion to endorse Michalski as an
additional witness. At a hearing on the State’s motion, which
was held approximately 10 days after the motion was filed, the
State indicated that it had given Schramm’s counsel notice that
“[it] was thinking about calling [Michalski] as a witness on
March 1st and then . . . maybe a few days later or a week later
. . . did inform [counsel] that [it] was in fact intending on calling her as a witness.” Schramm’s counsel did not dispute the
State’s explanation of the timeline; however, counsel did argue
that initially, the State had indicated that Michalski was not
going to offer any opinions specific to this case. However, the
day before the hearing, which was less than 2 weeks prior to
the scheduled trial, the State informed counsel that Michalski
had looked at photographs of J.K.’s eyes and was going to
opine that redness in the eyes could be consistent with strangulation. Counsel stated:
[T]his is kind of the eleventh hour before trial. We are
getting - first she wasn’t going to offer any opinions and
wasn’t going to look at any reports. Now, I find out as of
yesterday morning that she has looked at reports and now
offer a medical opinion.
So, that is kind of the eleventh hour for me to find out
about that. Now I got to find - if you are going to allow
her to testify, I have got to scramble to find someone to
look at these reports and I got phone calls into doctors
trying to find - in case you allow her to testify.
Ultimately, the district court sustained the State’s motion to
endorse Michalski as a witness.
At a separate hearing held on April 5, 2018, which was 4
days before the trial was to begin, Schramm’s counsel made
an oral motion to continue the trial. Counsel indicated that
he was “running into problems finding expert witnesses” who
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could dispute the opinion provided by Michalski regarding the
condition of J.K.’s eyes. Specifically, counsel explained:
I tried to find somebody locally. I went to [one forensic
institute located in Nebraska]. I took reports and the same
thing . . . Michalski looked at, the videos. [The forensic
expert] contacted me yesterday. He has an opinion but he
cannot help me. It’s a scheduling thing. I don’t know. He
just can’t come and he is sorry.
So now, I have Thursday and Friday and the trial on
Monday to find someone else and doctors are busy. It is
hard to find experts.
....
I did make a call today. I would ask to continue this
so I can locate a witness and I did make a call today to
another witness in Kansas City and got her voicemail. I
don’t know if I got a call when I get back, don’t know
her availability, I don’t know anything. But I am pretty
sure this short amount of notice, this doctor is not going
to be available.
The State opposed Schramm’s motion to continue the trial.
The State indicated that it had informed defense counsel about
Michalski “about a month ago”; however, the State did not dispute that it had not informed counsel about Michalski’s testifying as to her medical opinion regarding the condition of J.K.’s
eyes until about March 27, 2018. The State asserted that it had
spent a significant amount of money in arranging for J.K. to
fly from the Czech Republic, where she was then living, to
Lincoln so that she could testify. The State asserted that J.K.
was already on the plane and en route to Nebraska in anticipation of the trial which was to begin in 4 days.
The court denied Schramm’s motion to continue the trial.
The court stated, “We will proceed with trial[;] you still have
four or five days to locate an expert if that is what you choose
to do.”
Prior to Michalski’s testimony at trial, Schramm again
brought up his motion to continue the trial. Defense counsel
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indicated that he had not had an acceptable amount of time to
secure his own expert witness, even though he had “diligently
tried to find people.” The district court overruled Schramm’s
objections to Michalski’s testifying.
On appeal, Schramm argues that the district court abused
its discretion in denying his motion to continue the trial so
that he could obtain his own expert medical witness to refute
Michalski’s testimony about the condition of J.K.’s eyes. Upon
our review, we conclude that Schramm’s assertion has merit.
(b) Standard of Review
[1,2] A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not
be disturbed on appeal absent an abuse of discretion. State v.
Ash, 286 Neb. 681,
838 N.W.2d 273 (2013). A judicial abuse
of discretion exists only when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying a just result in matters submitted
for disposition.
Id.
(c) Analysis
Although not mentioned by either party, it must be noted
that Neb. Rev. Stat. § 25-1148 (Reissue 2016) provides, in
pertinent part:
Whenever application for continuance or adjournment
is made by a party or parties to any cause or proceeding
pending in the district court of any county, such application shall be by written motion entitled in the cause or
proceeding and setting forth the grounds upon which the
application is made, which motion shall be supported by
the affidavit or affidavits of person or persons competent
to testify as witnesses under the laws of this state, in
proof of and setting forth the facts upon which such continuance or adjournment is asked.
Not only was the application for continuance in this case made
by oral motion, the motion was not supported by affidavits.
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[3] However, the failure to comply with the provisions
of § 25-1148 is but a factor to be considered in determining whether a trial court abused its discretion in denying a
continuance. State v. Santos,
238 Neb. 25,
468 N.W.2d 613
(1991). Here, the motion for continuance was made at a hearing held approximately 1 week after the district court had
granted the State’s motion to endorse Michalski as a witness.
According to both defense counsel and the State, the motion
to continue was made only 1 week after defense counsel had
learned that Michalski would be providing a medical opinion
regarding the condition of J.K.’s eyes based upon photographs
taken on August 28, 2017. As such, the motion was made at
a time when, after 1 week of searching, Schramm had been
unable to secure his own expert witness to testify. Given that
Schramm made the oral motion to continue at his next appearance before the district court and given the close proximity
in time to the start of the trial, we cannot say that the oral
nature of the motion is, in and of itself, a sufficient basis upon
which to declare that the district court did not abuse its discretion in denying the continuance. Moreover, while supporting
affidavits may have been useful to confirm Schramm’s efforts
at finding an expert witness, we recognize that Schramm was
under strict time constraints and, as such, do not find that the
failure to include the affidavits is, under these circumstances,
fatal to his motion.
[4] We thus move on to a consideration of the merits of
the continuance request. The general rule, which has been
articulated by the Nebraska Supreme Court, is that a continuance must be granted to allow defense counsel adequate time
to prepare a defense. See Dolen v. State,
148 Neb. 317,
27
N.W.2d 264 (1947). See, also, State v.
Santos, supra. Our
analysis of whether the district court abused its discretion
in denying Schramm’s motion to continue the trial centers
on whether he was provided with sufficient notice regarding
Michalski’s testimony such that he had adequate time to prepare his defense. Ultimately, we conclude that Schramm did
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not receive sufficient notice of Michalski’s testimony and that
he should have been granted a continuance of trial in order to
prepare his defense.
[5,6] A criminal defendant has constitutional and statutory rights which mandate the timely disclosure of the State’s
evidence in a criminal case. State v. Ash,
286 Neb. 681,
838
N.W.2d 273 (2013). In fact,
Neb. Rev. Stat. § 29-1912(2)
(Reissue 2016) requires the State, upon request, to disclose evidence that is material to the preparation of a defense. See State
v.
Ash, supra. In State v. Kula,
252 Neb. 471, 486,
562 N.W.2d
717, 727 (1997), the Nebraska Supreme Court held:
[W]hether a prosecutor’s failure to disclose evidence
results in prejudice depends on whether the information
sought is material to the preparation of the defense, meaning that there is a strong indication that such information
will play an important role in uncovering admissible
evidence, aiding preparation of witnesses, corroborating
testimony, or assisting impeachment or rebuttal.
In this case, while it is true that the State did, eventually,
endorse Michalski as a witness and, then later, did inform
Schramm that Michalski would be offering her expert medical opinion regarding the condition of J.K.’s eyes after the
August 28, 2017, incident, it is also true that the State made
these disclosures very close in time to the scheduled trial date.
Although the State contends that it mentioned the possibility
of Michalski’s testifying to defense counsel on March 1, 2018,
approximately 5 weeks prior to trial, the State did not file
its motion to endorse Michalski as a witness until March 19,
which was approximately 3 weeks prior to trial. Moreover, as
Schramm asserts, and the State does not dispute, the State did
not inform Schramm until March 27, or approximately 10 days
prior to trial, that Michalski would be offering opinion testimony regarding the specific facts of this case. We find that
such opinion testimony is clearly material to the preparation of
Schramm’s defense, particularly when the bulk of the remaining evidence offered at trial amounted to only J.K’s version
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of events and Schramm’s version of events, with Michalski’s
testimony clearly corroborating J.K.’s version.
Given the State’s late disclosure that Michalski would be
testifying, and its even later disclosure about what Michalski
would be testifying about, Schramm was left with approximately 10 days to locate a person with expertise in the area
of strangulation and linear vascular congestion, to provide
that person with the materials sufficient for an opinion to
be rendered, to determine whether that person may dispute
Michalski’s opinion, and to secure that person’s attendance
at trial. We do not disagree with Schramm’s contention that
it would be very difficult, if not impossible, to secure such a
medical opinion in such a limited timeframe.
[7] In its brief on appeal, the State argues that Schramm
has failed to demonstrate that he was in any way prejudiced
by the district court’s denial of his motion to continue the
trial. Specifically, the State asserts that Schramm has failed to
explain “what another expert would have countered with” and
how such testimony would have been helpful to his defense.
Brief for appellee at 21. We recognize that the Nebraska
Supreme Court has previously held that there is no abuse
of discretion by a court in denying a continuance unless it
clearly appears that the defendant suffered prejudice as a
result thereof. See State v. Bradley,
236 Neb. 371,
461 N.W.2d
524 (1990). See, also, State v. Bruna,
12 Neb. App. 798,
686
N.W.2d 590 (2004). However, we must disagree with the
State’s contention that Schramm’s argument must fail because
he did not demonstrate any specific prejudice in his trial strategy. Under the circumstances of this case, Schramm did not
even have enough time to determine whether an expert could
assist in his defense because he did not have adequate time to
find an expert, to have that expert evaluate the evidence, and
to provide Schramm with any opinion. As such, it is impossible
to know whether Schramm suffered any prejudice in his trial
strategy because we do not know what a potential expert might
have testified to. The fact that Schramm did not have enough
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time to consult with an expert and to then move forward with
his trial strategy caused him prejudice.
Moreover, although Schramm was able to cross-examine
Michalski regarding her medical opinion and was able to flesh
out both that Michalski was not qualified to diagnose a specific condition and that there were other possible causes of
the linear vascular congestion present in J.K.’s eyes besides
strangulation, Michalski was still able to testify that in her
expert medical opinion, the appearance of J.K.’s eyes in the
photographs was consistent with being strangled. Schramm
should have had an opportunity not only to soften the impact
of this testimony during cross-examination, but also to attempt
to hire an expert of his own who could potentially either refute
or diminish the impact of Michalski’s testimony.
The State also argues on appeal, as it did in the district
court, that it had expended a great deal of money in reliance on the scheduled trial date and that Schramm was
aware of this expenditure. We recognize that the State did
spend a not insignificant amount of money in paying for the
travel expenses of J.K. We also recognize that by the time
Schramm made his oral motion to continue, J.K. was, apparently, already on a plane en route to Nebraska from the Czech
Republic. However, we do not find that the State’s monetary
investment outweighs Schramm’s right to be able to present
a defense to the State’s case against him. We also note that it
was the State which added Michalski to its witness list close
in time to the trial and which did not disclose the full extent
of her testimony until approximately 10 days before the trial.
The State knew of the investment it had made in securing
J.K.’s presence presumably before it made these changes to
its trial strategy. And, moreover, the State should have known
that these material changes would affect the trial strategy of
the defense.
Upon our review of the totality of the circumstances, we
must conclude that Schramm was not provided with adequate
time to prepare his defense. Specifically, he was not provided
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with adequate time to adjust his trial strategy to address
Michalski’s expert medical testimony given the limited time
available to him prior to the trial. We find that the district court
abused its discretion in denying Schramm’s motion to continue
the trial.
[8] Having concluded that the denial of the motion to continue was reversible error, we must determine whether the
totality of the evidence admitted by the district court was sufficient to sustain Schramm’s conviction; if it was not, then
double jeopardy forbids a remand for a new trial. See State v.
Ash,
286 Neb. 681,
838 N.W.2d 273 (2013). But the Double
Jeopardy Clause does not forbid a retrial so long as the sum of
all the evidence admitted by a trial court, whether erroneously
or not, would have been sufficient to sustain a guilty verdict.
State v.
Ash, supra.
After reviewing the record, we conclude that the evidence
presented at trial was sufficient to support the verdict against
Schramm. As such, we conclude that double jeopardy does not
preclude a remand for a new trial, and we therefore reverse,
and remand for a new trial.
2. Schramm’s Other Assigned Errors
Our determination that the district court committed reversible error by failing to grant Schramm a continuance in order to
attempt to secure his own expert witness resolves this appeal.
While we are not required to consider Schramm’s additional
assignments of error, see White v. Board of Regents, 260 Neb.
26,
614 N.W.2d 330 (2000), and In re Interest of Battiato,
259 Neb. 829,
613 N.W.2d 12 (2000) (appellate court is not
obligated to engage in analysis not needed to adjudicate case
and controversy before it), we may, at our discretion, discuss
issues unnecessary to the disposition of an appeal where those
issues are likely to recur during further proceedings, see State
v. Edwards,
286 Neb. 404,
837 N.W.2d 81 (2013). We will
therefore address Schramm’s assertions regarding the admissibility of Michalski’s testimony and whether the district court
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correctly instructed the jury, as those issues are likely to recur
on remand.
3. A dmissibility of Michalski’s Testimony
(a) Additional Background
Once Schramm learned that the State was indeed planning
on calling Michalski as a witness at trial, he filed a motion
asking the court to hold a Daubert/Schafersman hearing in
order to determine whether Michalski qualified as an expert
witness. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579,
113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and
Schafersman v. Agland Coop,
262 Neb. 215,
631 N.W.2d 862
(2001). In the motion, Schramm generally asserted that the
“[e]xpert opinions regarding domestic violence and strangulation testimony, specifically the testimony of Susan Michalski
RN, MS SANE/FNE, . . . does not meet the standard for
admissibility required . . . .” Schramm also filed a motion
which asserted that Michalski’s testimony should not be
admitted because it was not relevant and because any probative value was substantially outweighed by the danger of
unfair prejudice.
A hearing was held on Schramm’s motions prior to trial.
At the hearing, Michalski testified to substantially the same
information as she testified to during the trial, which we
detailed in the background section above. She did explain
during her testimony at the hearing that she has previously
qualified to testify as an expert on domestic violence and/or
strangulation on 11 previous occasions. After Michalski testified, Schramm argued that she is not an expert on domestic
violence or strangulation. He asserted that she is only a registered nurse and not a diagnosing physician, that she “has not
had enough continuing education to stay up on this topic,” and
that she has been merely a “trainer” for the past few years.
He also asserted that Michalski should not be permitted to
testify that J.K. was telling the truth, which he believed was
“all . . . Michalski is going to do.” Schramm asserted that
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the jurors would understand what strangulation is without
Michalski’s explaining it to them.
After the hearing, the district court entered an order finding that “Michalski is qualified as an expert in the areas of
domestic violence and strangulation by her knowledge, skill,
experience, training, and education.” The court further found
that Michalski’s “specialized knowledge in these areas . . .
will assist a trier of fact in understanding the evidence and/or
determining a fact in issue.” The court noted that it did “not
believe that characteristics of a perpetrator and/or victim of
domestic violence are common knowledge. Nor does the court
expect that a lay person knows the physical effects of strangulation and/or the signs and symptoms typically associated
with strangulation.”
Prior to Michalski’s testimony at trial, Schramm renewed
his objection to her testimony. The district court overruled his
objection and permitted Michalski to testify as an expert. On
appeal, Schramm challenges the district court’s finding that
Michalski was qualified to testify as an expert.
(b) Standard of Review
[9] 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. Herrera, 289 Neb. 575,
856 N.W.2d 310 (2014). The
standard for reviewing the admissibility of expert testimony
is abuse of discretion.
Id. We review the record de novo to
determine whether a trial court has abdicated its gatekeeping
function when admitting expert testimony.
Id.
(c) Analysis
In his brief on appeal, Schramm asserts that the district court
erred in permitting Michalski to testify as an expert witness.
Specifically, Schramm argues that Michalski’s “testimony was
not scientific, technical or specialized in that it would have
assisted the trier of fact to understand the evidence. Neither
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did she have the knowledge, skill, experience, training or
education required to qualify her as an expert witness on the
evidence that was . . . admitted in this trial.” Brief for appellant at 13. Upon our review, we find that the district court did
not err in permitting Michalski to testify as an expert on the
subject of strangulation.
The Nebraska Evidence Rules provide: “If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.” Neb. Evid. R. 702,
Neb. Rev. Stat.
§ 27-702 (Reissue 2016). In Schafersman v. Agland Coop,
262 Neb. 215,
631 N.W.2d 862 (2001), the Nebraska Supreme
Court adopted the standards which the U.S. Supreme Court
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579,
113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993),
to determine whether expert testimony is admissible under
§ 27-702.
[10] Under the principles set forth in Daubert/Schafersman,
the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion. State v.
Herrera,
supra. If the opinion involves scientific or specialized knowledge, trial courts must also determine whether the reasoning or
methodology underlying the expert’s opinion is scientifically
valid. State v. Casillas,
279 Neb. 820,
782 N.W.2d 882 (2010).
Several nonexclusive factors are considered in making this
determination: (1) whether a theory or technique can be (and
has been) tested; (2) whether it has been subjected to peer
review and publication; (3) whether, in respect to a particular
technique, there is a high known or potential rate of error; (4)
whether there are standards controlling the technique’s operation; and (5) whether the theory or technique enjoys general
acceptance within a relevant scientific community. State v.
Herrera, supra. In order to properly conduct appellate review,
it is the duty of the trial court to adequately demonstrate by
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specific findings on the record that it has performed its gatekeeping functions. State v.
Casillas, supra.
[11] A challenge to the admissibility of evidence under
Daubert/Schafersman should take the form of a concise pretrial motion. State v. Herrera,
289 Neb. 575,
856 N.W.2d 310
(2014). It should identify, in terms of the Daubert/Schafersman
factors, what is believed to be lacking with respect to the
validity and reliability of the evidence and any challenge to
the relevance of the evidence to the issues of the case.
Id. In
order to preserve judicial economy and resources, the motion
should include or incorporate all other bases for challenging
the admissibility, including any challenge to the qualifications
of the expert.
Id.
Schramm’s motion requesting that the district court hold
an evidentiary hearing to determine the admissibility of
Michalski’s testimony pursuant to the Daubert/Schafersman
factors did not reference any specific factor which he believed
was lacking with respect to Michalski’s testimony. Rather,
the motion very generally asserted that Michalski’s testimony
“does not meet the standard for admissibility.” In its order,
the district court noted the deficiency in the motion, indicating that Schramm had “failed to sufficiently call into question
the reliability or validity of any aspect of . . . Michalski’s
anticipated testimony. He has not called into question the
factual basis, data, principles, or methods underlying . . .
Michalski’s anticipated testimony.” Despite the shortcomings
with Schramm’s motion, the district court went on to analyze
whether Michalski’s testimony was admissible pursuant to the
entire Daubert/Schafersman framework.
On appeal, Schramm argues that Michalski’s testimony did
not meet the requirements of § 27-702, and even if it did,
it was inadmissible under Daubert/Schafersman. Our review
of these arguments is complicated by the fact that Schramm
has not identified the specific testimony that he claims was
erroneously admitted. He refers only to testimony regarding “strangulation,” brief for appellant at 13, and complains
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that Michalski “was allowed to testify and offer an opinion
to issues that were central to this case,” id. at 14. He does
not, however, identify what that opinion was. He has also not
identified which prong of the Daubert/Schafersman analysis
is lacking. We recognize that Schramm was hindered in his
presentation of evidence at the Daubert/Schafersman hearing
due to the untimely designation of Michalski and her proposed
testimony; however, we are limited to the record before us in
reviewing the district court’s decision. Based upon the evidence presented at the pretrial hearing, we find no error in the
district court’s order allowing Michalski’s testimony.
4. Jury Instructions
(a) Additional Background
Schramm requested that the district court include an additional jury instruction related to analyzing the credibility of
expert testimony. The language of the proposed instruction
read as follows:
You have heard testimony from an expert witness. It
is up to you to determine the validity and weight of the
scientific testimony. Factors you should consider are:
(1) Whether the theory or technique can be, and has
been, tested;
(2) Whether the theory or technique has been subjected
to peer review and publication;
(3) The known or potential rate of technique has been
subjected to peer review and publication;
(4) The general acceptance of the theory or technique
in the scientific community.
The State objected to Schramm’s proposed jury instruction. It
argued that jury instruction No. 9, as authored by the court,
was sufficient to instruct the jury regarding evaluating the
credibility of an expert witness. Jury instruction No. 9 read
as follows:
A witness who has special knowledge, skill, experience, training, or education in a particular area may testify
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as an expert in that area. You determine what weight, if
any, to give to an expert’s testimony just as you do with
the testimony of any other witness. You should consider
the expert’s credibility as a witness, the expert’s qualifications as an expert, the sources of the expert’s information, and the reasons given for any opinions expressed by
the expert.
Accord NJI2d Crim. 5.4. Ultimately, the district court rejected
Schramm’s proposed jury instruction and did not include it in
the instructions read to the jury. Schramm appeals from the
district court’s decision.
(b) Standard of Review
[12] Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal
present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below. State v. McCurry, 296 Neb. 40,
891 N.W.2d
663 (2017).
[13,14] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.
Id. All the jury
instructions must be read together, and if, taken as a whole,
they correctly state the law, are not misleading, and adequately
cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal.
Id.
(c) Analysis
On appeal, Schramm argues that the district court erred
in rejecting his proposed jury instruction. He asserts that the
proposed instruction provided the jury with a more detailed
explanation than jury instruction No. 9 regarding how to
evaluate expert witness testimony. He asserts that this instruction is a correct statement of the law and would have assisted
the jury during its deliberations. Specifically, he states, “The
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prejudice to [Schramm] is readily apparent. The impact of the
jury being improperly instructed with respect to the credibility
and weight to give expert testimony is fathomless.” Brief for
appellant at 19. Upon our review, we conclude that the district
court’s refusal to give the proposed jury instruction did not
constitute reversible error.
[15] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. State v. Rothenberger,
294 Neb. 810,
885 N.W.2d 23 (2016).
[16] Here, the district court used a pattern jury instruction
regarding the jury’s evaluation of the credibility of an expert
witness. See NJI2d Crim. 5.4. Whenever an applicable instruction may be taken from the Nebraska Jury Instructions, that
instruction is the one which should usually be given to the
jury in a criminal case. State v. Morgan,
286 Neb. 556,
837
N.W.2d 543 (2013). Schramm requested that the district court
depart from the pattern jury instruction and provide the jury
with a more detailed explanation of how to evaluate the credibility of an expert witness. However, Schramm’s proposed
jury instruction asked the jury to consider the underlying principles of Michalski’s testimony. In fact, Schramm’s proposed
jury instruction asked the jury to consider the exact Daubert/
Schafersman factors that the trial court is to use in determining whether the reasoning or methodology underlying the
expert’s opinion is scientifically valid and, thus, in determining whether an expert can testify before a jury. In this case,
as we discussed more thoroughly above, the district court had
performed its proper gatekeeping function and had determined
that Michalski’s testimony was admissible pursuant to the
Daubert/Schafersman factors. It was not the province of the
jury to review the district court’s decision. Rather, the jury
was to evaluate the credibility of the expert witness and to
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determine what weight to give the expert’s testimony, just as it
was to do with any other witness.
The district court did not err in utilizing the pattern jury
instruction to instruct the jury on how to evaluate the credibility of expert testimony. Such an instruction was a correct statement of the law and did not prejudice Schramm in any way.
V. CONCLUSION
Because the district court failed to grant Schramm’s motion
to continue the trial and, thus, failed to provide Schramm
with adequate time to prepare his defense, the judgment and
sentence of the district court are reversed and the cause is
remanded for a new trial.
R eversed and remanded for a new trial.
