State v. Torres Aquino: Discovery Sanctions, Offer of Proof & Harmless Error Review

Introduction

This commentary examines the Nebraska Supreme Court’s April 18, 2025 decision in State v. Torres Aquino (318 Neb. 771), which addressed the exclusion of evidence as a discovery sanction in a criminal sexual-assault prosecution. The case arose after the defendant, Nimrod Torres Aquino, filed a last-minute subpoena duces tecum and motion in limine seeking to introduce a child‐victim’s emergency‐room records. The trial court quashed the subpoena and barred the records as a sanction for an alleged reciprocal-discovery violation. On appeal, the Court of Appeals affirmed; the Supreme Court granted further review to clarify (1) preservation requirements for challenging discovery‐sanction orders, (2) the need (or lack thereof) to renew offers of proof at trial, and (3) the harmless-error standard when evidence is excluded for discovery violations.

Summary of the Judgment

The defendant was charged with first and third degree sexual assault of his underage stepdaughter, T.G.T., based on allegations spanning December 1, 2021 to February 24, 2022.
Five days before trial, defense counsel subpoenaed the emergency-room physician, Dr. Partida, and her records of a March 25, 2022 visit in which T.G.T. reported a “penetrative sexual assault approximately 4 months ago.”
The State moved to quash the subpoena and exclude the records, citing doctor‐patient privilege, the Trammell procedure for protected health information, and a reciprocal‐discovery order. The trial court found a discovery violation, quashed the subpoena, and barred the records and Partida’s testimony as a sanction.
At trial the defense offered the sealed record (Exhibit 2) but the court sustained the State’s objections on privilege, hearsay, relevance, and discovery grounds.
The jury convicted the defendant on both counts. On appeal, the Nebraska Court of Appeals held the defendant waived error by failing to renew an offer of proof at trial and further held that any ineffective-assistance claim failed for lack of demonstrated prejudice.
The Nebraska Supreme Court affirmed, holding:
1. No requirement exists to re‐offer proof at trial of evidence excluded as a discovery sanction.
2. An offer of proof at the pretrial hearing, combined with the record, sufficiently preserved the issue.
3. Assuming error in excluding the evidence, it was harmless beyond a reasonable doubt given the cumulative impeachment evidence and the strength of the State’s proof.
4. Because no prejudice resulted, any alleged deficient performance by trial counsel cannot sustain an ineffective-assistance claim.

Analysis

1. Precedents Cited

State v. Woods (255 Neb. 755): Reciprocal-discovery orders are enforceable by sanction.
State v. Sierra (305 Neb. 249): Trial court may impose sanctions, including exclusion, for discovery violations under § 29-1919.
State v. Trammell (231 Neb. 137): Governs procedures to obtain protected health information of crime victims.
State v. Schreiner (276 Neb. 393): Clarified that motions in limine do not finally determine admissibility; offers of proof must be made at trial in that context.
State v. Kramer (238 Neb. 252): Affirmed the offer-of-proof requirement under Neb. Rev. Stat. § 27-103 when evidence is excluded.
State v. Pangborn (286 Neb. 363): Reinforced harmless error review for evidentiary exclusions in criminal cases.
Key statutes:
- § 29-1912: Defendant’s statutory discovery rights.
- § 29-1916: Authorized reciprocal discovery by the defendant.
- § 29-1919: Sanctions for discovery violations, including exclusion of evidence.
- § 27-103: Nebraska’s general rule on offers of proof to preserve evidentiary error.

2. Legal Reasoning

The Supreme Court’s analysis turned on three principal issues:

Preservation of Error. The trial court’s quashing of the subpoena and exclusion of records was a final ruling on discovery sanctions—not an interlocutory ruling on admissibility under the Evidence Rules. Therefore the offer-of-proof requirement of § 27-103 and Schreiner (which applies to motions in limine excluding evidence) did not strictly apply. The defense’s pretrial offer of proof and its record thereafter sufficed to challenge the sanction on appeal.
Harmless Error Standard. Excluding evidence as a sanction for a discovery violation is subject to harmless error review. Under Neb. Rev. Stat. §§ 27-103 and 29-2308, and Nebraska and U.S. Supreme Court precedent, an error is harmless if the reviewing court can say “beyond a reasonable doubt” that the error did not contribute to the verdict. Here, the barred records merely reflected a single prior inconsistent statement regarding the date of the assault—information already elicited (and thoroughly tested on cross-examination) by referencing the victim’s deposition and forensic interview. The trial exhibits and testimony were cumulative; the verdict rested on abundant other proof.
Ineffective Assistance of Counsel. Because the exclusion of Dr. Partida’s testimony and records was harmless, any failure by trial counsel to disclose her as a witness or to follow the Trammell procedure could not have prejudiced the defendant. Thus the ineffective-assistance claim failed under the two-pronged test of Strickland and Nebraska cases: even assuming deficient performance, no reasonable probability exists that the trial outcome would have been different.

3. Impact

The decision in State v. Torres Aquino provides important guidance:

Trial courts retain broad discretion to impose discovery sanctions under § 29-1919, including quashing subpoenas and excluding evidence, when a defendant fails to comply with reciprocal-discovery orders.
Appellate courts will review such sanctions for harmless error; exclusion of evidence—even of constitutional magnitude—does not automatically require reversal.
Defendants may preserve challenges to discovery-sanction orders by pretrial offers of proof and a developed record, without needing to renew offers of proof at trial.
Ineffective-assistance claims based on discovery violations must show both deficient performance and a reasonable probability of a different result, a burden made steeper when the excluded evidence is merely cumulative.
Prosecutors and defense counsel should track all sources of discovery—especially non-governmental sources such as medical or social-services providers—to avoid sanctions for late disclosure.

Complex Concepts Simplified

Discovery Sanction: A penalty imposed by the court—ranging from fines to excluding evidence—when a party violates court-ordered discovery rules.
Reciprocal Discovery (§ 29-1916): Mutual exchange of witness lists, statements, and documents between prosecution and defense.
Offer of Proof (Rule 27-103): A procedure where the party seeking to admit excluded evidence explains on the record what the evidence would have shown, enabling appellate review.
Harmless Error: A legal finding that an error at trial did not affect the outcome, so reversal is not warranted.
Trammell Procedure: A special process for obtaining protected health-care records of crime victims (named after State v. Trammell).
Ineffective Assistance of Counsel: A claim that counsel’s performance fell below professional standards and prejudiced the defense, requiring relief only if both prongs of the test are met.

Conclusion

State v. Torres Aquino clarifies that exclusion of evidence as a discovery sanction is subject to harmless-error review and need not be preserved by a mid-trial renewal of offers of proof. The decision underscores the trial court’s discretion in policing late disclosures, the importance of building a full record for appeal, and the high bar to reversal when excluded evidence is cumulative. This precedent will shape discovery practices, evidentiary strategies, and ineffective-assistance claims in Nebraska criminal law.