State v. Ballew
| Decision Date | 14 August 2015 |
| Docket Number | No. S–13–1065,S–13–1065 |
| Citation | 867 N.W.2d 571 |
| Parties | State of Nebraska, appellee, v. Joshua D. Ballew, appellant. |
| Court | Nebraska Supreme Court |
Jessica L. Milburn for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Heavican, C.J., Wrigh t, Co nnolly, Stepha n, McCormack, Miller–Lerman, and Cassel, JJ.
1. Criminal Law: Motions for New Trial: Appeal and Error.In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.
2. Double Jeopardy: Convictions: Appeal and Error.Whether two convictions result in multiple punishments for the same offense for double jeopardy purposes presents a question of law, on which an appellate court reaches a conclusion independent of the court below.
3. 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 determining admissibility.
4. Rules of Evidence: Hearsay: Appeal and Error.Apart from rulings under the residual hearsay exception, an appellate court will review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.
5. Constitutional Law: Due Process: Witnesses: Appeal and Error.An appellate court reviews de novo a trial court's determination of the protections afforded by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and reviews the underlying factual determinations for clear error. The determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.
6. Judgments: Appeal and Error.When 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.
7. Double Jeopardy.The Double Jeopardy Clauses of both the federal and Nebraska Constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.
8. Double Jeopardy: Sentences: Proof.Under Blockburger v. United States,284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or one is whether each provision requires proof of a fact which the other does not. This test, otherwise known as the “same elements” test, asks whether each offense contains an element not contained in the other. If not, they are the same offense and double jeopardy bars additional punishment and successive prosecution. If so, they are not the same offense and double jeopardy is not a bar to additional punishment.
9. Criminal Law: Statutes: Double Jeopardy.In applying Blockburger v. United States,284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to separately codified criminal statutes which may be violated in alternative ways, only the elements charged in the case at hand should be compared in determining whether the offenses under consideration are separate or the same for purposes of double jeopardy.
10. Rules of Evidence: Impeachment: Prior Statements.Prior inconsistent statements are admissible as impeachment evidence, but they are not admissible as substantive evidence unless they are otherwise admissible under the Nebraska Evidence Rules.
11. Trial: Testimony: Prior Statements: Appeal and Error.The trial court has considerable discretion in determining whether testimony is inconsistent with prior statements, and absent an abuse of that discretion, the trial court's ruling will be upheld on appeal.
12. Rules of Evidence: Hearsay: Proof.Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
13. Criminal Law: Constitutional Law: Due Process: Rules of Evidence.Whether rooted directly in the Due Process Clause of the 14th Amendment or in the Compulsory Process or Confrontation Clauses of the 6th Amendment, the federal Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. However, the accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.
14. Criminal Law: Constitutional Law: Trial: Witnesses.The right of a person accused of a crime to confront the witnesses against him or her is a fundamental right guaranteed by the 6th Amendment to the U.S. Constitution, as incorporated in the 14th Amendment, as well as by article I, § 11, of the Nebraska Constitution. But the right is not unlimited, and only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent the defense may wish.
15. Trial: Testimony.When the object of cross-examination is to collaterally ascertain the accuracy or credibility of the witness, the scope of the inquiry is ordinarily subject to the discretion of the trial court.
16. Constitutional Law: Trial: Juries: Witnesses.An accused's constitutional right of confrontation is violated when either (1) he or she is absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness or (2) a reasonable jury would have received a significantly different impression of the witnesses' credibility had counsel been permitted to pursue his or her proposed line of cross-examination.
Joshua D. Ballew appeals his convictions and sentences in the district court for Lancaster County for two counts of first degree assault, two counts of second degree assault, and two counts of use of a deadly weapon to commit a felony. Ballew claims that the district court erred when it overruled his motion for a new trial, which motion was based on an alleged double jeopardy violation and on allegedly erroneous evidentiary rulings. We affirm Ballew's convictions and sentences.
Ballew attended a party at the house of Marshall Mock and his roommates. The party began on the night of March 9, 2012, and continued into the early morning hours of March 10. At around 1:30 a.m., a fight broke out in the front yard of the house. Among those who became involved in the fight were Mock and a guest, Tyler Waddell. Both Waddell and Mock were stabbed. Police responding to calls found Ballew in the area near Mock's house and took him into custody after noting that he fit the description of the suspect and that his right hand was bloody.
The State charged Ballew with two counts of first degree assault in violation of Neb.Rev.Stat. § 28–308 (Cum.Supp.2014), two counts of second degree assault in violation of Neb.Rev.Stat. § 28–309 (Cum.Supp.2014), and two counts of use of a deadly weapon to commit a felony in violation of Neb.Rev.Stat. § 28–1205(1) (Cum.Supp.2014). Ballew was charged with one count of each offense with respect to each of the two victims—Waddell and Mock. The State also charged Ballew with being a habitual criminal.
With respect to each charge of first degree assault, the State alleged that Ballew had intentionally or knowingly caused serious bodily injury to the victim, and with respect to each charge of second degree assault, the State alleged that Ballew had intentionally or knowingly caused bodily injury to the victim with a dangerous instrument or that he had recklessly caused serious bodily injury to the victim with a dangerous instrument. At the close of evidence at trial, the court sustained the State's motion to amend the second degree assault charges to conform to the evidence by removing the language alleging that Ballew had recklessly caused serious bodily injury with a dangerous instrument. Therefore, the second degree assault charges were presented to the jury as alleging that Ballew had intentionally or knowingly caused bodily injury to each victim with a dangerous instrument.
The evidence the State presented at trial included testimony by four witnesses who identified Ballew as the person
involved in the stabbings. These witnesses included the victims, Mock and Waddell, as well as Mikaela Perry and Blake Klapperich.
Mock testified that during the party, he heard screaming from outside and went to see what was happening. He saw people on the porch screaming at two men on the sidewalk. Mock identified Ballew as one of the men on the sidewalk, and he testified that he had seen Ballew in the house earlier that night. Mock went to the sidewalk to ask the men to leave. As Mock was talking with Ballew and the other man, the other man ran past Mock toward the house and grazed Mock's shoulder. As Mock turned to see what the other man was doing, he felt himself being struck in the back. Mock testified that when he was struck, he and Ballew were the only people in the immediate area. Ballew left, and as Mock returned to his house, he realized that he was bleeding and that he had been stabbed.
Perry testified that she was at the party at Mock's house and that a fight broke out between some of her male friends and another group of men. She stood on the porch and watched the fighting until she saw Mock come up the stairs. She saw that Mock was bleeding, and she went inside with him. Before Mock came up the stairs, Perry saw him standing with one man in front of him and one man behind. Perry identified Ballew as the man who was standing...
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