State v. Aguilar, S-03-1120.

Citation268 Neb. 411,683 N.W.2d 349
Decision Date16 July 2004
Docket NumberNo. S-03-1120.,S-03-1120.
PartiesSTATE of Nebraska, appellee, v. Billy R. AGUILAR, appellant.
CourtSupreme Court of Nebraska

683 N.W.2d 349
268 Neb. 411

STATE of Nebraska, appellee,
Billy R. AGUILAR, appellant

No. S-03-1120.

Supreme Court of Nebraska.

July 16, 2004.

683 N.W.2d 351
Gerard A. Piccolo, Grand Island, Hall County Public Defender, and John C. Jorgensen for appellant

Jon Bruning, Attorney General, and Susan J. Gustafson for appellee.


683 N.W.2d 352

Billy R. Aguilar appeals his convictions and sentences for first degree assault, burglary, attempt to commit first degree murder, and two counts of use of a weapon to commit a felony. He contends that the court improperly held a hearing during trial under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that he was entitled to a mistrial when a stricken juror was inadvertently placed on the jury but later was replaced by an alternate juror. He also raises numerous evidentiary assignments of error.

We conclude that a trial court may, in its discretion, hold a Daubert hearing during trial. We also determine that he was not entitled to a mistrial. We further determine that the remaining assignments of error are without merit. Accordingly, we affirm.


Billy and his cousin, Mario Aguilar had been good friends during elementary school, but over the years they drifted apart. Still, they remained friends until Billy started behaving in a bizarre manner.

In October 2002, Billy's behavior began to deteriorate. While Mario was exercising at the YMCA, Billy came in and unexpectedly said to Mario, "`You're everywhere'" and "`I can hear you in the air and in the vents in my house, and just all over. You're everywhere.'" Other witnesses stated that Billy told people that he heard Mario's voice in his head and that Billy was heard laughing and talking to himself.

On several occasions in December 2002, Mario saw Billy drive by his place of employment. On January 20, 2003, a man wearing a mask approached Mario as he was opening his place of employment. The man asked, "`How you doing?'" and then jabbed a knife toward Mario's stomach, laughed, and began swinging the knife. He said, "`Come here, come here,'" and Mario backed away. The man then left. Mario identified the man as Billy, stating that he recognized his voice, body, movements, and laugh. Mario called the police, but initially did not tell them Billy was the perpetrator because he wanted to work things out with Billy and "didn't want him to get in trouble." After he was unable to contact Billy, Mario called the police again and reported that Billy was the perpetrator. The record is silent on what action the police took after the knife incident.

After the knife incident, early in the morning of February 20, 2003, a person knocked on Mario's door in a distinctive pattern. Mario asked who was there; the person responded "`Primo,'" the word for cousin in Spanish. Mario stated that he recognized the voice as Billy's and that he looked out the window and saw Billy with his back turned. He called to him, but Billy did not respond and ran away.

At 9 o'clock that night, Mario and his wife heard the same distinctive knock on the door. Mario told his family to stay in a bedroom while he went to the door. A masked man pounded on the door and then shot and kicked it in; the intruder then shot Mario three times. Mario stated that he easily recognized Billy as the shooter.

Later, Billy's sweatshirt was tested for gunshot residue. The State's expert, Joseph Morris, an employee in the forensic department of R.J. Lee Group, testified that he was trained in gunshot residue analysis. He also testified about his experience and the quality control standards that were obtained from another company, Fisher Scientific. Billy objected to the testimony on Daubert grounds. The court

683 N.W.2d 353
admitted the testimony; Morris testified that he found residue on Billy's sweatshirt

The jury found Billy guilty of first degree assault, burglary, attempt to commit first degree murder, and two counts of use of a weapon to commit a felony. The jury acquitted him of a stalking charge. The court sentenced him to varying terms of imprisonment on each count, some running concurrently and some consecutively. Billy appeals.


Billy assigns, consolidated and rephrased, that the district court erred by (1) holding a Daubert hearing during trial, (2) overruling his motion for a mistrial, (3) allowing Morris to testify about the standards from Fisher Scientific, (4) allowing Mario's testimony about Billy's handwriting, (5) allowing testimony about the cost of further testing, (6) allowing testimony from Billy's brother about writing on a piece of paper, (7) allowing testimony about Billy's meeting with Mario at the YMCA, (8) allowing testimony about the assault on January 20, 2003, (9) overruling a form of the question objection about Billy's not returning a wave, (10) allowing testimony from several witnesses about Billy's looking for a gun, (11) allowing testimony from another cousin of Billy about a meeting with Billy, (12) allowing a 911 emergency dispatch service tape into evidence, (13) allowing evidence that Mario's wife saw Billy on her way to daycare, (14) allowing evidence about Billy's laughing, (15) allowing impeachment testimony, and (16) allowing testimony from certain police officers.


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 such discretion a factor in determining admissibility. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).

The decision whether to grant a motion for mistrial is within the trial court's discretion and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003).

Interpretation of a statute presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).



Billy argues that it is improper to defer Daubert determinations until trial.

Neb.Rev.Stat. §27-104 (Reissue 1995) provides:

(1) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the judge, subject to the provisions of subsection (2) of this section.
(2) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(3) ... Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness, if he so requests.

Section 27-104 is silent about the timing of a hearing to determine the admissibility of expert opinion testimony.

683 N.W.2d 354
Although we have not specifically addressed when a hearing may be held, we have indicated that a hearing before trial is not mandatory. When we adopted the Daubert standard, we noted that a court's decision about the admissibility of expert opinion evidence entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and...

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