State v. Casillas

A motion for DNA testing under the DNA Testing Act is
addressed to the discretion of the trial court, and unless an
abuse of discretion is shown, the determination of the trial
court will not be disturbed on appeal. State v. Lotter, 266 Neb.
758, 669 N.W.2d 438 (2003). The current methods of DNA
testing were available at the time of Haas’ trial. We conclude
that the district court did not abuse its discretion in refusing
DNA testing.
CONCLUSION
We find that the district court did not err in denying Haas
postconviction relief and denying DNA testing. Haas did not
establish whether D.A.K. was African-American and, there-
fore, did not establish that the prosecution exercised peremp-
tory challenges on the basis of race. The issue of whether
striking a juror based on the race of the juror’s child is subject
to a Batson challenge was not raised before the lower court;
therefore, we do not consider it on appeal. We also conclude
that the district court did not abuse its discretion in denying
Haas’ motion to amend his postconviction motion to allege
ineffective assistance of counsel for failing to secure DNA test-
ing and that Haas did not establish a basis that would require
DNA testing pursuant to the DNA Testing Act.
For the reasons set forth herein, we affirm the judgment of
the district court.
A ffirmed.
StAte of NebrASkA, Appellee , v.
ANthoNy A. CASillAS, AppellANt.
782 N.W.2d 882
Filed May 7, 2010. 	No. S-09-660.
1. Rules of Evidence. 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 determin-
ing admissibility.
2. Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
sibility of expert testimony is abuse of discretion.
820 	279 NEbRASKA REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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3. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews the
record de novo to determine whether a trial court has abdicated its gatekeeping
function when admitting expert testimony.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
5. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. but whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
6. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
7. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. A sei-
zure in the Fourth Amendment context occurs only if, in view of all the circum-
stances surrounding the incident, a reasonable person would have believed that he
or she was not free to leave.
8. ____: ____: ____. A tier-one police-citizen encounter involves the voluntary
cooperation of the citizen elicited through noncoercive questioning and does not
involve any restraint of the liberty of the citizen involved.
9. Police Officers and Sheriffs: Search and Seizure. A seizure does not occur
simply by reason of the fact that a police officer approaches an individual, asks
him or her for identification, and poses a few questions to that individual, so
long as the officer does not indicate that compliance with his or her request is
required and the questioning is carried on without interrupting or restraining the
person’s movement.
10. Constitutional Law: Search and Seizure. If there is no detention or seizure
within the meaning of the Fourth Amendment to the U.S. Constitution, then the
Fourth Amendment safeguard against an unreasonable search and seizure is not
implicated and reasonable suspicion is not required.
11. Miranda Rights: Investigative Stops: Motor Vehicles. persons temporarily
detained pursuant to an investigatory traffic stop are not “in custody” for the
purpose of Miranda.
12. Miranda Rights: Drunk Driving: Investigative Stops. Temporarily detaining a
driver to submit to routine field sobriety tests does not ordinarily rise to the level
of custody so as to implicate Miranda.
13. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal
case, harmless error exists when there is some incorrect conduct by the trial court
which, on review of the entire record, did not materially influence the jury in
reaching a verdict adverse to a substantial right of the defendant.
14. 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 reli-
ability of an expert’s opinion.
STATE v. CASILLAS 	821
Cite as 279 Neb. 820

15. Trial: Expert Witnesses: Intent. The purpose of the gatekeeping function is
to ensure that the courtroom door remains closed to “junk science” that might
unduly influence the jury, while admitting reliable expert testimony that will
assist the trier of fact.
16. Expert Witnesses. Expert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it.
17. Trial: Evidence. The trial court does not have the discretion to abdicate its gate-
keeping duty.
18. Trial: Expert Witnesses. A pretrial hearing 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), is not
always mandated, and the extensiveness of any such hearing is left to the discre-
tion of the trial court.
19. Trial: Expert Witnesses: Proof. Fundamentally, it is the burden of the proponent
of the evidence to establish the necessary foundation for its admission, including
its scientific reliability 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).
20. Trial: Expert Witnesses: Pretrial Procedure. To sufficiently call specialized
knowledge into question 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), is to object with enough
specificity so that the court understands what is being challenged and can accord-
ingly determine the necessity and extent of any pretrial proceeding.
21. ____: ____: ____. The proponent of specialized evidence need not go through the
exercise of re-proving reliability of the same evidence in every case.
22. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
23. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the violence involved in the commission of the crime.
24. ____. In imposing a sentence, the sentencing court is not limited to any math-
ematically applied set of factors.
25. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.
Appeal from the District Court for Lancaster County: robert
r. otte, Judge. Affirmed.
Dennis R. Keefe, Lancaster County public Defender, and
John C. Jorgensen for appellant.
822 	279 NEbRASKA REpORTS

Jon bruning, Attorney General, and George R. Love for
appellee.
heAviCAN, 	C.J., 	Wright, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
mCC ormACk , J.
NATURE OF CASE
Anthony A. Casillas was charged with driving under the
influence, third offense, and with the aggravated crime of driv-
ing with a concentration of more than .15 of 1 gram of alcohol
per 210 liters of breath. Casillas was found drunk sitting on
the driver’s side of his parked vehicle after a 911 emergency
dispatch call reported a similar vehicle being driven errati-
cally in the same area. A breathalyzer test showed a breath
alcohol level of .267. Casillas’ theory of defense at trial was
that he was not operating his vehicle on the night in question,
although, on appeal, he does not challenge the sufficiency of
the jury’s finding that he was. Casillas argues on appeal that
the arresting officer’s observations of his impairment should
have been suppressed because they stemmed from an unlawful
search and seizure, that his statements to the officer were made
in violation of Miranda, and that the reliability of the hori-
zontal gaze nystagmus (HGN) test conducted by the arresting
officer should have been addressed in a separate evidentiary
hearing before being allowed into evidence at trial. Casillas
also challenges the jury instructions and asserts that his sen-
tences were excessive.
bACKGROUND
On May 12, 2008, around 8:30 p.m., a woman driving
north on 27th Street in Lincoln, Nebraska, became concerned
about the vehicle in front of her. The witness testified that the
vehicle, a blue Chevrolet pickup truck, was driving erratically
and had driven up onto the curb a couple of times. The witness
called 911 from her cellular telephone to report her observa-
tions to the police. before losing sight of the truck, the witness
saw it turn onto Y Street and then onto 28th Street. She could
not identify the driver of the vehicle.
STATE v. CASILLAS 	823
Cite as 279 Neb. 820

Officer Jon Rennerfeldt responded to the call and arrived at
28th and Y Streets at approximately 8:50 p.m. He saw a blue
Chevrolet pickup truck parked along the curb on 28th Street,
partially up the curb and on the grass. Casillas was sitting in
the driver’s seat. Rennerfeldt parked his police cruiser in the
street and approached the truck on foot. He did not activate his
police cruiser’s overhead lights.
At trial, Rennerfeldt testified that as he approached, he
observed exhaust coming from the tailpipe of the truck. He
further testified that when he was near the truck, he saw
the driver remove the keys from the ignition. On cross-
examination, Rennerfeldt admitted that he had never before
reported seeing exhaust coming from the tailpipe. He also
admitted that in previous deposition testimony, he had said he
did not recall for certain whether the truck was running when
he approached.
Rennerfeldt testified that when he asked Casillas for his
license, registration, and proof of insurance, Casillas “kind of
slowly looked at me and said he didn’t have a license, and he
just kind of sat there” and did nothing. Rennerfeldt stated that
he immediately noticed a strong odor of intoxicating beverage
coming from the truck and from Casillas. He also noticed that
Casillas’ eyes were bloodshot and watery and that his speech
was slurred. Rennerfeldt asked Casillas how much he had had
to drink, and Casillas replied, “too much.” Defense counsel did
not object at trial to this statement.
Rennerfeldt next testified that he asked Casillas to step out
of the truck to assess his level of impairment. At this point,
defense counsel made a continuing objection to Rennerfeldt’s
testimony based upon a pretrial motion to suppress, which
was overruled. Rennerfeldt testified that as Casillas exited the
truck, he attempted to steady his balance by grabbing onto
the door. And as Casillas walked toward the sidewalk, he
grabbed onto the side and back of his truck in order to keep
his balance.
Over defense counsel’s objection, Rennerfeldt testified that
the first field sobriety test he attempted to administer was the
HGN test. Rennerfeldt was a 7-year veteran of the police force
and testified that he is trained in detecting impairment through
824 	279 NEbRASKA REpORTS

field sobriety tests, including the HGN test. Rennerfeldt testi-
fied specifically that he had attended a 24-hour class given by
the phoenix, Arizona, police department when he was an officer
in Arizona. In that class, the HGN test was conducted in a “wet
workshop,” where test groups of people either had or had not
consumed varying amounts of alcohol. He also attended train-
ing on HGN in Nebraska. Rennerfeldt explained that someone
who is not under the influence will be able to smoothly track
an object passed slowly from side to side, while a person under
the influence exhibits jerky eye movements when attempting
the same. Rennerfeldt explained that there are three phases to
the HGN test. However, he was not able to get through the first
phase of the test with Casillas because Casillas was not able to
track the stimulus well enough. Rennerfeldt testified that while
attempting the first phase, he observed a “very delayed” jerking
of Casillas’ eyes.
After the HGN test, Rennerfeldt asked Casillas to attempt
the one-legged stand. As he instructed Casillas on the test,
he observed Casillas swaying in a circular motion. After the
explanation, Casillas told Rennerfeldt, “fuck this shit, man.”
Defense counsel did not specifically object to this statement.
Rennerfeldt asked Casillas if he would like to try one more
test, but Casillas refused.
Rennerfeldt took Casillas to a detoxification center to test
his breath alcohol levels. Rennerfeldt is a licensed opera-
tor of the Intoxilyzer Model 5000 and conducted the test.
Evidence was adduced at trial establishing the reliability of the
machine used to test Casillas. At 10:08 p.m., the Intoxilyzer
reported that Casillas had .267 grams of alcohol per 210 liters
of breath.
At the close of the State’s case in chief, defense counsel
moved to dismiss. Counsel explained that there was no dispute
that the Intoxilyzer score was significantly high and that .267 is
over .08 and .15. but counsel argued that there was insufficient
evidence that Casillas was operating the truck on the night in
question. The court overruled the motion.
Casillas took the stand in his own defense. According to
Casillas, he never drove that evening. He explained that he had
driven his truck to a friend’s house in the afternoon, but did
STATE v. CASILLAS 	825
Cite as 279 Neb. 820

not drive it after that time. Casillas testified that while at his
friend’s house, he had consumed 8 or 10 beers and innumerable
shots of vodka. Casillas described his level of intoxication as a
7 on a 10-point scale and explained that he was drunk enough
to be concerned that he might pass out. It was for that reason
that he went to his truck. According to Casillas:
[I]n a moment I was kind of getting drunk and I state[d]
to my friend that I’m going outside to get some fresh
air. So I decided to go down to my truck because I said
if I pass out, I don’t want to pass out here outside of the
apartment, you know. So I say I go to my truck and if I
pass out, I pass out in my truck.
Casillas testified that when Rennerfeldt arrived, he was listen-
ing to music. He testified that his radio had an independent bat-
tery and that he never placed the keys in the ignition. Casillas’
friend with whom he had been drinking did not testify at the
trial. The jury found Casillas guilty of both charges.
pretriAl motioNS
before the trial, defense counsel had unsuccessfully sought
to exclude all evidence of Rennerfeldt’s observations of and
conversations with Casillas, as well as the breath test results.
At the pretrial hearing on his motions to suppress, defense
counsel alleged that Rennerfeldt lacked reasonable suspicion or
probable cause to stop Casillas. Defense counsel asserted there
was nothing unusual about the fact that Casillas had parked his
truck somewhat poorly alongside the curb, and he objected to
Rennerfeldt’s hearsay testimony concerning the 911 call. The
caller did not appear for the suppression hearing, although she
did testify at the trial.
The court also denied Casillas’ motion to suppress state-
ments made by Casillas during the stop on the grounds that
they were involuntarily made and in violation of Miranda v.
Arizona.1 Rennerfeldt testified that he did not give Casillas
Miranda warnings until he arrived at the detoxification center.
The court found that Rennerfeldt’s initial contact with Casillas
was a first-tier encounter. Regardless, the court concluded that
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
826 	279 NEbRASKA REpORTS

before making contact with Casillas, Rennerfeldt had both rea-
sonable suspicion and probable cause based upon what he was
told by his dispatcher and his observation that Casillas’ truck
was improperly parked. With regard to Casillas’ statements to
Rennerfeldt, the court concluded that they were voluntarily
made despite the fact that Rennerfeldt likely made the decision
to arrest Casillas when he asked Casillas to exit the vehicle.
The court implicitly concluded that at the time of the state-
ments, Casillas was not yet in custody.
Defense counsel had asked for an evidentiary hearing to
challenge the reliability of the HGN test results before allow-
ing that evidence at trial and had filed a motion in limine to
exclude the HGN results. The court withheld its ruling on the
motions until after the hearing on the motions to suppress.
At the suppression hearing, Rennerfeldt was examined as to
the foundation for the HGN test results. In addition to outlin-
ing his training and experience as he did at trial, Rennerfeldt
expressed what he had been told concerning the scientific
validity of the test. Rennerfeldt testified that he was not certain,
but he believed that nystagmus occurred naturally in less than 3
percent of the population. Rennerfeldt testified that according
to the National Highway Traffic Safety Administration, how-
ever, such naturally occurring nystagmus was never observable.
Accordingly, he did not believe that the HGN test had any offi-
cial margin of error.
On cross-examination, Rennerfeldt elaborated that his train-
ing in Arizona involved, in addition to the first wet workshop,
3 months of field training, where a log was kept to test his
accuracy at predicting whether the subject was over the legal
limit based on the HGN test. Arizona required a 90-percent
accuracy rate of such predictions with a minimum of 35 sub-
jects and then required attendance at a second wet workshop
before an officer was considered proficient at conducting the
test. Rennerfeldt stated that he has continued to keep a field
log of the accuracy of his HGN testing, which he had in his
possession, but defense counsel did not inquire further, and the
log was not entered into evidence. Rennerfeldt admitted that
he had not personally participated in the development of any
standardized field sobriety tests, including HGN.
STATE v. CASILLAS 	827
Cite as 279 Neb. 820

After the hearing, defense counsel argued that Rennerfeldt’s
testimony failed to adequately demonstrate the reliability of
the HGN test. After giving the parties time to brief the mat-
ter, the court denied defense counsel’s request for any further
evidentiary hearing on the validity of the HGN test. The court
also denied defense counsel’s motion in limine to exclude
the test. The court noted that Rennerfeldt had demonstrated
he had experience and training in conducting the test, and
there was no evidence presented by defense counsel suggest-
ing the need for an evidentiary hearing. The court concluded
that “the HGN test does not warrant a Schafersman [v. Agland
Coop2] analysis.”
Jury iNStruCtioNS
Defense counsel objected to the jury instructions to the
extent that they did not require the jury to unanimously deter-
mine that Casillas had a breath alcohol level greater than .08
before considering the question of whether his breath alcohol
content was greater than .15. The instructions given stated that
the jury could reach one of three possible verdicts: (1) not
guilty, (2) guilty of driving under the influence of alcoholic
liquor, or (3) guilty of driving under the influence of alcoholic
liquor and driving while having a concentration of .15 of 1
gram or more by weight of alcohol per 210 liters of breath.
The jury was instructed that in order to find Casillas guilty
of driving under the influence, it must find either that he was
actually under the influence of alcoholic liquor or that he had
a concentration of .08 of 1 gram or more by weight of alcohol
per 210 liters of his breath while operating a motor vehicle.
The jury was instructed that it need not agree unanimously
on whether Casillas was guilty by virtue of being under the
influence or by virtue of having an alcoholic liquor concen-
tration of .08. but if it found Casillas guilty of driving under
the influence, it must then decide whether the State proved,
beyond a reasonable doubt, the additional element that at
the time Casillas was operating a motor vehicle, he had a
2 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
828 	279 NEbRASKA REpORTS

concentration of .15 of 1 gram or more by weight of alcohol
per 210 liters of breath.
Defense 	counsel’s 	proposed 	instruction 	stated 	in 	rele-
vant part:
Only if you agree unanimously that the state proved
beyond a reasonable doubt that . . . Casillas had a concen-
tration of eight-hundredths (.08) of one gram or more by
weight of alcohol per two hundred ten (210) liters of his
breath, need you then decide whether the state has proven
beyond a reasonable doubt that . . . Casillas had a concen-
tration of fifteen-hundredths (.15) of one gram or more
by weight of alcohol per two hundred ten (210) liters of
his breath . . . .
SeNteNCeS
After the jury’s guilty verdict, the trial court sentenced
Casillas to 360 days’ imprisonment and a 15-year license revo-
cation. The court explained that imprisonment was necessary
for the protection of the public because the risk was substantial
that during any period of probation, Casillas would engage in
additional criminal conduct. The court stated further that lesser
sentences would depreciate the seriousness of Casillas’ crimes
and promote disrespect for the law.
ASSIGNMENTS OF ERROR
Casillas argues that the trial court erred in (1) ruling that
HGN testing does not warrant analysis under Schafersman v.
Agland Coop3 and permitting such evidence and testimony at
trial, (2) overruling his motions to suppress the traffic stop and
all evidence obtained therefrom, (3) overruling his motion to
suppress statements made following the traffic stop, (4) refus-
ing to give his proposed instructions, and (5) imposing exces-
sive sentences.
STANDARD OF REVIEW
[1] In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska
3 Id.
STATE v. CASILLAS 	829
Cite as 279 Neb. 820

Evidence Rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility.4
[2,3] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.5 We review the record de novo
to determine whether a trial court has abdicated its gatekeeping
function when admitting expert testimony.6
[4] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.7
[5] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.8
[6] Whether jury instructions given by a trial court are cor-
rect is a question of law.9
trAffiC Stop
Casillas argues that all of the evidence relating to the eve-
ning in question should have been suppressed because it was
obtained by an illegal search and seizure. Casillas’ argument
is based on the premise that Rennerfeldt’s act of walking
toward Casillas’ parked vehicle was a seizure under the Fourth
Amendment. And, according to Casillas, Rennerfeldt lacked
reasonable suspicion to make such a seizure, because the court
should have disregarded the 911 dispatch call as unreliable and
as inadmissible hearsay.
4 State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
5 State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
6 Id.
7 State v. Daly, supra note 4.
8 State v. Scheffert, ante p. 479, 778 N.W.2d 733 (2010).
9 State v. Bormann, ante p. 320, 777 N.W.2d 829 (2010).
830 	279 NEbRASKA REpORTS

Without lending any credence to Casillas’ argument regard-
ing the weight to be given the dispatch call, we find no merit
to his conclusion that before Rennerfeldt had reached the
driver’s-side window, Casillas had been stopped for purposes
of the Fourth Amendment. Rather, we agree with the trial
court that Rennerfeldt and Casillas were involved in a tier-
one encounter.
[7,8] A seizure in the Fourth Amendment context occurs only
if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he or she was not
free to leave.10 A tier-one police-citizen encounter involves
the voluntary cooperation of the citizen elicited through non-
coercive questioning and does not involve any restraint of the
liberty of the citizen involved.11
[9] Rennerfeldt approached Casillas on foot. He did not turn
on the overhead lights of his police cruiser. Rennerfeldt did
not interfere with Casillas’ prior activity of sitting in the truck.
Instead, he asked for identification and posed a few questions
to Casillas. We have explained that a seizure does not occur
simply by reason of the fact that a police officer approaches
an individual, asks him or her for identification, and poses a
few questions to that individual, so long as the officer does not
indicate that compliance with his or her request is required and
the questioning is carried on without interrupting or restraining
the person’s movement.12
[10] 	The 	cases 	upon 	which 	Casillas 	relies, 	State 	v.
Pickinpaugh13 and State v. Benson,14 involved drivers whose
vehicles were pulled over by law enforcement. Such is not the
case here. In this case, there has been no restraint of movement,
and thus, there was no detention or seizure. If there is no deten-
tion or seizure within the meaning of the Fourth Amendment to
the U.S. Constitution, then the Fourth Amendment safeguard
10 State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997).
11 See State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
12 See id.
13 State v. Pickinpaugh, 17 Neb. App. 329, 762 N.W.2d 328 (2009).
14 State v. Benson, 198 Neb. 14, 251 N.W.2d 659 (1977).
STATE v. CASILLAS 	831
Cite as 279 Neb. 820

against an unreasonable search and seizure is not implicated
and reasonable suspicion is not required.15
Only when Casillas was asked to step out of his truck and
submit to field sobriety tests did the encounter rise to a tier-
two investigatory stop as defined by Terry v. Ohio.16 At that
point, however, it is uncontested that Rennerfeldt had reason-
able suspicion that criminal activity was afoot. Not only was
Rennerfeldt privy to the 911 dispatch call, but he testified that
he observed Casillas’ truck parked partially up the curb and on
the grass and that the truck was running. Rennerfeldt also testi-
fied that he observed indicia of impairment through Casillas’
speech and odor and that Casillas told Rennerfeldt he had had
too much to drink. Thus, we agree with the trial court that the
evidence obtained from Casillas was not the product of an ille-
gal search and seizure.
M iranda
Casillas next argues that the trial court erred in admitting
Rennerfeldt’s testimony concerning statements he made on the
evening in question. According to Casillas, he was effectively
“in custody” for purposes of Miranda and, since he was not
advised of his Miranda rights at that time, the statements were
inadmissible. The only statements presented to the jury were
Casillas’ statements that he had too much to drink and that he
did not wish to continue with the field sobriety tests.
[11,12] As already discussed, the most damaging of the state-
ments—that he had had too much to drink—was uttered during
a tier-one encounter while Casillas was being informally ques-
tioned as he sat in his vehicle. Thus, Miranda does not apply.
but neither does Miranda apply to Casillas’ statements made
during the field sobriety testing. persons temporarily detained
pursuant to an investigatory traffic stop are not “in custody”
for the purpose of Miranda.17 Temporarily detaining a driver
to submit to routine field sobriety tests does not ordinarily rise
15 See State v. Soukharith, supra note 10.
16 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See,
also, State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008).
17 See State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996).
832 	279 NEbRASKA REpORTS

to the level of custody so as to implicate Miranda.18 While
Casillas asserts that Rennerfeldt made the decision to arrest
Casillas before the statements were made, we find this point
irrelevant. The officer’s unexpressed thoughts have no impact
on whether a reasonable person would feel free to leave.
Rennerfeldt’s behavior toward Casillas during the field sobriety
testing indicated a merely temporary detention. We find that
neither of Casillas’ statements were subject to Miranda and
were thus properly admitted at trial.
hgN teSt
Casillas’ principal argument regarding the admission of evi-
dence against him focuses on the HGN test. Casillas argues
that 	HGN 	involves 	scientific 	testimony 	and 	should 	have
been subjected to a hearing under Daubert v. Merrell Dow
Pharmaceuticals, Inc.,19 and Schafersman v. Agland Coop20
before being presented to the jury. According to Casillas,
Rennerfeldt’s own testimony at the suppression hearing called
into question the factual basis, data, principles, and applica-
tion of the HGN testing of Casillas, and the trial court erred
in placing the burden upon Casillas to present evidence of
unreliability before a Daubert/Schafersman hearing would even
be conducted.
[13] We agree that the trial court failed to carry out its gate-
keeping duties under Daubert/Schafersman. but we note at the
outset that the admission of Rennerfeldt’s testimony concern-
ing the HGN test was harmless. In a jury trial of a criminal
case, harmless error exists when there is some incorrect con-
duct by the trial court which, on review of the entire record, did
not materially influence the jury in reaching a verdict adverse
18 See id. See, also, e.g., Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct.
3138, 82 L. Ed. 2d 317 (1984); State v. Bayer, 229 Or. App. 267, 211 p.3d
327 (2009); Thomas v. State, 294 Ga. App. 108, 668 S.E.2d 540 (2008);
State v. Warren, 957 A.2d 63 (Me. 2008); Brown v. State, 171 Md. App.
489, 910 A.2d 571 (2006); State v. Mellett, 642 N.W.2d 779 (Minn. App.
2002); State v. Garbutt, 173 Vt. 277, 790 A.2d 444 (2001).
19 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.
Ct. 2786, 125 L. Ed. 2d 469 (1993).
20 See Schafersman v. Agland Coop, supra note 2.
STATE v. CASILLAS 	833
Cite as 279 Neb. 820

to a substantial right of the defendant.21 In this case, even
though the HGN test carried the weight of scientific evidence,
it was presented as but a small part of Rennerfeldt’s observa-
tions which led him to conclude that Casillas was intoxicated.
The breathalyzer test results confirmed these observations. We
conclude that the jury’s determination that Casillas was oper-
ating a vehicle with at least .15 of 1 gram of alcohol per 210
liters of breath was unattributable to the admission of the HGN
test results.
[14-16] Nevertheless, we will discuss the trial court’s error
in order to provide future guidance for the courts and how the
trial court erred in this case. Neb. Rev. Stat. § 27-702 (Reissue
2008) states that “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evi-
dence 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.”
Under the principles set forth in Daubert22 and Schafersman,23
the trial court acts as a gatekeeper to ensure the evidentiary
relevance and reliability of an expert’s opinion.24 The purpose
of the gatekeeping function is to ensure that the courtroom
door remains closed to “junk science” that might unduly influ-
ence the jury, while admitting reliable expert testimony that
will assist the trier of fact.25 As stated in Daubert, “‘Expert
evidence can be both powerful and quite misleading because of
the difficulty in evaluating it.’”26
before Daubert and Schafersman, this gatekeeping function
was carried out in Nebraska trial courts under the principles
of Frye v. United States.27 In Frye, the single question that
21 State v. Ford, ante p. 453, 778 N.W.2d 473 (2010).
22 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 19.
23 Schafersman v. Agland Coop, supra note 2.
24 Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004).
25 Adesina v. Aladan Corp., 438 F. Supp. 2d 329 (S.D.N.Y. 2006).
26 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 19, 509 U.S. at
595.
27 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
834 	279 NEbRASKA REpORTS

determined admissibility was whether the evidence had become
generally accepted in its field.28 After Daubert/Schafersman,
the question became whether the evidence was reliable. Several
nonexclusive factors are considered in making this determina-
tion: (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.29
The intent of Daubert was to be more in keeping with the
“‘liberal thrust’” of the Federal Evidence Rules and their gen-
eral approach of relaxing the traditional barriers to opinion
testimony—to let in good science before it became generally
accepted.30 but, in some instances, Daubert can be more con-
servative. It might preclude the admission of evidence that
would have been accepted under Frye because, while most
science generally accepted in the relevant scientific community
will be good science, it is not necessarily so.31
[17] because the court must independently evaluate whether
the evidence is based in good science, Daubert is generally
considered to have imposed a more rigorous gatekeeper func-
tion on trial courts than Frye did.32 And the trial court does not
have the discretion to abdicate its gatekeeping duty.33 “[U]nder
the Daubert/Schafersman . . . framework, the burden to weed
out unreliable expert testimony is placed directly on the trial
court.”34 before admitting any expert opinion testimony, the
trial court must determine whether the expert’s knowledge,
28 See Schafersman v. Agland Coop, supra note 2.
29 See, e.g., State v. Daly, supra note 4.
30 Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 19, 509 U.S. at
588.
31 Schafersman v. Agland Coop, supra note 2.
32 See State v. Coon, 974 p.2d 386 (Alaska 1999).
33 See Zimmerman v. Powell, supra note 24.
34 Id. at 428, 684 N.W.2d at 8.
STATE v. CASILLAS 	835
Cite as 279 Neb. 820

skill, experience, training, and education qualify the witness
as an expert.35 If the opinion involves scientific or special-
ized knowledge, trial courts must also determine whether the
reasoning or methodology underlying the expert’s opinion is
scientifically valid.36 In order to properly conduct appellate
review, it is the duty of the trial court to adequately demon-
strate by specific findings on the record that it has performed
its gatekeeping functions.37
[18] All specialized knowledge falls generally under the
rules of Daubert/Schafersman. HGN involves scientific knowl-
edge.38 Thus, the trial court erred insofar as it indicated that
HGN fell outside of Daubert/Schafersman. but even as to spe-
cialized evidence, what specific duties Daubert/Schafersman
impose depends on the circumstances. A pretrial hearing under
Daubert/Schafersman is not always mandated, and the exten-
siveness of any such hearing is left to the discretion of the
trial court.39
[19] It also appears from the trial court’s order that it
denied a hearing, because Casillas did not present affirmative
evidence of unreliability to trigger it. We have said that the
initial task falls on the party opposing expert testimony to suf-
ficiently call into question its reliability.40 However, we have
never said that the initial burden to produce evidence disprov-
ing reliability is upon the opponent. And even if we had, it is
unclear how the opponent would present such evidence if not
in a hearing. Fundamentally, it is always the burden of the
35 King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d
24 (2009).
36 Id.
37 See id. See, also, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct.
1167, 143 L. Ed. 2d 238 (1999).
38 See, e.g., Commonwealth v. Sands, 424 Mass. 184, 675 N.E.2d 370 (1997)
(and cases cited therein). but see Hulse v. State, Dept. of Justice, 289
Mont. 1, 961 p.2d 75 (1998).
39 See State v. Daly, supra note 4.
40 State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007). See, also, State v.
Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006); State v. Mason, 271 Neb.
16, 709 N.W.2d 638 (2006).
836 	279 NEbRASKA REpORTS

proponent of the evidence to establish the necessary founda-
tion for its admission, including its scientific reliability under
Daubert/Schafersman.41
[20] To sufficiently call specialized knowledge into question
under Daubert/Schafersman is to object with enough specificity
so that the court understands what is being challenged and can
accordingly determine the necessity and extent of any pre-
trial proceeding.42 Assuming that the opponent has been given
timely notice of the proposed testimony, the opponent’s chal-
lenge to the admissibility of evidence under Daubert should
take the form of a concise pretrial motion. It should identify,
in terms of the Daubert 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. 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.43
In this case, Casillas pointed out in his motion in limine
that the State had presented no evidence as to the underlying
reliability of the HGN test—that there was a complete absence
of foundation for its admission. Specifically, Casillas made a
particular point of the fact that there was no reliable evidence
on the margin of error for the test and the rate of naturally
occurring nystagmus. Although Rennerfeldt testified as to
his personal testing of HGN in his training classes and while
on the job, such experience did not establish, by scientific
method, the correlation between nystagmus and intoxication
41 See, Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed.
2d 144 (1987); King v. Burlington Northern Santa Fe Ry. Co., supra note
35; State v. Mason, supra note 40. See, also, U.S. v. Nacchio, 555 F.3d
1234 (10th Cir. 2009); U.S. v. Frazier, 387 F.3d 1244 (11th Cir. 2004);
U.S. v. Mooney, 315 F.3d 54 (1st Cir. 2002); Moore v. Ashland Chemical
Inc., 151 F.3d 269 (5th Cir. 1998); In re Paoli R.R. Yard PCB Litigation,
35 F.3d 717 (3d Cir. 1994).
42 See, State v. Mason, supra note 40. See, also, State v. Kuehn, supra note
40; Kinney v. H.P. Smith Ford, 266 Neb. 591, 667 N.W.2d 529 (2003).
43 60 Am. Jur. Trials 1, § 19 (1996).
STATE v. CASILLAS 	837
Cite as 279 Neb. 820

levels.44 And he was unable to testify with any degree of cer-
tainty as to the margin of error. Rennerfeldt, while qualified to
testify that he properly conducted the test, was unqualified to
establish its underlying reliability. The State did not attempt
to present any further documentary or testamentary evidence
relevant to any of the Daubert/Schafersman factors.
[21] Granted, as we have said, courts need not reinvent
the wheel each time that specialized evidence is adduced.45
The proponent need not continuously go through the exercise
of re-proving reliability of the same evidence in every case.
Instead, once a Nebraska trial court has actually examined
and assessed the reliability of a particular scientific wheel
under Daubert, and its determination has been affirmed on
appeal, then other courts may simply take judicial notice and
ride behind.46 In such cases, the proponent establishes a prima
facie case of reliability by relying on precedent, and the bur-
den shifts to the opponent to show that recent developments
raise doubts about the validity of previously relied-upon theo-
ries or techniques.47
The State points out that HGN testing is not novel to this
or any other court and that it is generally found to be admis-
sible.48 HGN testing has not been affirmed in Nebraska since
we adopted the Daubert test. So the trial court could not have
taken judicial notice of precedent to satisfy its gatekeeping
findings. Even if such precedent had existed, Casillas was
never put on notice that by virtue of precedent, the burden had
shifted to him.
because scientific acceptance remains an important factor
under Daubert/Schafersman, the State can rely, in part, on our
44 See State v. Borchardt, 224 Neb. 47, 395 N.W.2d 551 (1986), overruled on
other grounds, State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000).
45 State v. Mason, supra note 40.
46 See Stovall v. State, 140 S.W.3d 712 (Tex. App. 2004).
47 See Schafersman v. Agland Coop, supra note 2.
48 State v. Baue, supra note 44; State v. Borchardt, supra note 44. See, gener-
ally, 5 David L. Faigman et al., Modern Scientific Evidence: The Law and
Science of Expert Testimony § 41:8 (2009). See, also, State v. Daly, supra
note 4.
838 	279 NEbRASKA REpORTS

case law under Frye in making its prima facie case. but a his-
tory in this jurisdiction of prior acceptance under Frye does not
relieve the trial courts of their fundamental gatekeeping duties
or the proponent of its burden to lay foundation under Daubert/
Schafersman. It is not the opponent’s burden to come forth
with evidence proving a negative.49 Only once a prima facie
case of reliability has been presented, does the burden shift.50
As the court in Weinberg v. Geary51 explained:
Of course, the proponent of the evidence must establish
at least a minimal foundation for receipt of the expert
opinion. When he does so the burden of coming forward
shifts to the opponent of the evidence, ordinarily through
the use of preliminary questions, to attack the basis for
receiving the evidence.
To the extent that the trial court in this case placed the initial
burden upon the opponent of the evidence and concluded that
HGN was not a Daubert/Schafersman issue, it erred. Again,
given the overwhelming evidence of intoxication well above .15
and the minimal role that the HGN test played in Rennerfeldt’s
evaluation, we conclude that the error was harmless.
Jury iNStruCtioNS
[22] We next address the jury instructions. In an appeal
based on a claim of an erroneous jury instruction, the appel-
lant has the burden to show that the questioned instruction was
prejudicial or otherwise adversely affected a substantial right
of the appellant.52 We understand Casillas’ argument regard-
ing the jury instructions to be that the jury had to first deter-
mine, unanimously, that Casillas had a breath alcohol content
of over .08 before determining, unanimously, that he had a
breath alcohol content of over .15. Casillas acknowledges
49 Craig ex rel. Craig v. Oakwood Hosp., 471 Mich. 67, 684 N.W.2d 296
(2004).
50 See, Hoult v. Hoult, 57 F.3d 1 (1st Cir. 1995); Michael J. Saks, Expert
Admissibility Symposium: Reliability Standards—Too High, Too Low, or
Just Right? 33 Seton Hall L. Rev. 1167 (2003).
51 Weinberg v. Geary, 686 N.E.2d 1298, 1301 (Ind. App. 1997).
52 State v. Vela, ante p. 94, 777 N.W.2d 266 (2010).
STATE v. CASILLAS 	839
Cite as 279 Neb. 820

that a driving-under-the-influence offense can generally be
shown either by evidence of physical impairment and well-
known indicia of intoxication or simply by excessive alcohol
content shown through a chemical test and that the jury need
not be unanimous in its determination of under which means
the offense was committed.53 but Casillas asserts that when
the jury must subsequently consider the aggravated offense
of being over .15, then such an instruction is inappropriate.
Casillas argues that it was inappropriate and inconsistent for
the court not to require a unanimous decision that Casillas’
breath alcohol level was greater than .08 before determining,
unanimously, that his breath alcohol level was greater than
.15. This is so because, otherwise, the jury might convict him
of being over .15 when it never agreed he was over .08. We
find no merit to this argument. If the jury unanimously agrees
that Casillas had a breath alcohol content of over .15, then it
also unanimously agrees that Casillas had a breath alcohol
content of at least .08.
exCeSSive SeNteNCeS
Finally, Casillas argues that his sentences were excessive.
Casillas notes that he expressed remorse and a desire to over-
come his substance abuse. In addition, an offender selection
worksheet indicated that Casillas would be suitable for inten-
sive supervision probation. After the jury’s guilty verdict, the
trial court sentenced Casillas to 360 days’ imprisonment and a
15-year license revocation.
[23-25] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense, and (8) the violence involved in the commission of
the crime.54 In imposing a sentence, the sentencing court is
not limited to any mathematically applied set of factors.55 The
53 See, e.g., State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008).
54 State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009).
55 Id.
840 	279 NEbRASKA REpORTS

appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.56
Having reviewed the trial record and the presentence inves-
tigation report, we find no evidence that the court imposed
excessive sentences. The court explained that imprisonment
was necessary for the protection of the public because the risk
was substantial that during any period of probation, Casillas
would engage in additional criminal conduct. This was not an
unreasonable conclusion given the extent of Casillas’ intoxi-
cation and the fact that this was his third offense. The court
further stated that lesser sentences would depreciate the seri-
ousness of Casillas’ crimes and promote disrespect for the law.
We find no error.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
trial court.
A ffirmed.
56 Id.
STATE v. CASILLAS 	841
Cite as 279 Neb. 820