State v. Fischer
| Decision Date | 19 January 2007 |
| Docket Number | No. S-06-069.,S-06-069. |
| Citation | 726 N.W.2d 176,272 Neb. 963 |
| Parties | STATE of Nebraska, Appellee, v. Thomas L. FISCHER, Appellant. |
| Court | Nebraska Supreme Court |
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, P.C., Kearney, for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown, Lincoln, for appellee.
Thomas L. Fischer was convicted in the county court for Cheyenne County of driving under the influence in violation of Neb. Rev.Stat. § 60-6,196 (Supp.2003). Fischer appealed his county court conviction to the district court for Cheyenne County. On appeal to the district court, Fischer asserted, inter alia, that the county court erred in overruling his objection to admission of certain exhibits and in concluding that he did not have a right under the Confrontation Clause to confront and cross-examine the person who prepared the certificate verifying the concentration of the alcohol breath simulator solution that was used to calibrate the breath testing device that was used to test Fischer's breath. The district court rejected Fischer's claims of error and affirmed his conviction. Fischer appeals. We conclude that the certificate verifying the concentration of the simulator solution is not testimonial in nature and not subject to further Confrontation Clause analysis. Because we determine there is no merit to the assigned errors, we affirm.
The State filed a complaint in county court charging that on June 18, 2004, Fischer was driving under the influence of alcoholic liquor in Sidney, Nebraska. The State cited § 60-6,196(1), which provides that it is "unlawful for any person to operate or be in actual physical control of any motor vehicle . . . (c) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath." Fischer pled not guilty and demanded a jury trial.
Prior to trial, Fischer filed a motion in limine seeking an order precluding the State from offering any evidence regarding the chemical test of Fischer's breath "unless the witness who prepared the simulator solution, which was used to calibrate the breath testing device herein, is present in Court and available for cross-examination." Fischer argued that the validity of the substance used to calibrate the breath testing device was critical to the ability of the device to give accurate results and that any assertion as to the validity of the substance was testimonial in nature and therefore subject to confrontation and cross-examination pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). After a hearing, the county court determined that title 177 of the Nebraska Administrative Code governed the admissibility of the chemical test results and that therefore, the foundation requirements were statutory and not evidentiary. See 177 Neb. Admin. Code, ch. 1 (2004). The court overruled Fischer's motion in limine, provided the State could show sufficient foundation for the admissibility of the test results under title 177.
Trial was held in county court on March 15, 2005. Sgt. Dale Miller of the Sidney Police Department testified that he was the department's site maintenance officer under title 177. As such, Miller was responsible for conducting the checks required under title 177 of the breath testing devices used by the department's officers. Miller testified that on June 12, 2004, a check was conducted on the device that was subsequently used to test Fischer's breath on June 18. Miller testified that the June 12 check showed that the device was functioning accurately. As part of the routine check, Miller used a breath simulator solution with a known concentration of alcohol. Miller testified that the solution was run through the device to determine whether the device accurately measured the known concentration of alcohol in the solution. Miller further testified that when he received the solution used to perform checks, he also received a document certifying that the solution was accurately prepared and that the stated concentration was accurate.
As part of Miller's testimony, the State offered into evidence exhibit 11, which was the document certifying the accuracy of the solution Miller used to test the device on June 12, 2004. The document was titled "Chemical Analysis Certification of Alcohol Breath Simulator Solution" and stated that the solution was prepared on February 3, 2004, "at a value of .080 of a gram of alcohol per 210 liters of breath." The certificate was signed by Cecil B. Garner, president of the company that supplied the solution. Fischer objected to admission of exhibit 11 on hearsay, foundation, and Confrontation Clause grounds. The court received the exhibit over Fischer's objection. Also in connection with Miller's testimony, the State offered into evidence exhibit 14, which was the "Certification of Accuracy of the Internal Reference Standard used for Calibration Verification" that Miller prepared and signed in connection with a June 3, 2004, check that Miller performed on the breath testing device. The court received exhibit 14 over Fischer's objection on foundation, hearsay, and Confrontation Clause grounds.
Officer Curtis Hofrock, the Sidney police officer who arrested Fischer, also testified at trial. Hofrock testified that he performed the breath test on Fischer. In connection with Hofrock's testimony, the State offered into evidence exhibit 16, which was a checklist Hofrock completed detailing the steps he took in performing the breath test on Fischer. The State also offered exhibit 17, which was the test card related to Fischer's breath test. The results as reflected on the card showed an alcohol concentration of .150 grams per 210 liters. The court received both exhibits 16 and 17 into evidence over Fischer's objections on, inter alia, Confrontation Clause grounds.
In submitting the case to the jury, the county court instructed the jury on reasonable doubt. The reasonable doubt instruction given by the court was as follows:
A reasonable doubt is one based upon reason and common sense after careful and impartial consideration of all the evidence. Proof beyond a reasonable doubt is proof so convincing that, once convinced, you would rely and act upon it without hesitation in the more serious and important transactions of life. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.
(Emphasis supplied.) The court rejected an instruction proposed by Fischer which read the same as the above-quoted instruction except that it omitted the phrase "once convinced" in the second sentence. The instruction proposed by Fischer followed the text of the pattern instruction in NJI2d Crim. 2.0.
The jury found Fischer guilty, and the county court entered judgment based on the verdict. On May 12, 2005, the county court sentenced Fischer to 6 months' probation.
Fischer appealed his conviction to the district court for Cheyenne County. In his statement of errors, Fischer asserted, inter alia, that the county court erred in failing to sustain his motion in limine, in receiving the results of the breath test into evidence, and in rejecting his proposed instruction on reasonable doubt and instead giving an improper instruction. On December 12, 2005, the district court entered an order ruling on Fischer's appeal. The district court rejected Fischer's argument that he had a right under the Confrontation Clause to cross-examine Garner, the person who signed the certificate regarding the preparation of the simulator solution. The district court found that the State had shown compliance with title 177 and that therefore, the breath test results were admissible. The district court further concluded that the reasonable doubt instruction given by the county court was an accurate statement of law. Having rejected his arguments, the district court affirmed Fischer's conviction. Fischer appeals the district court's order affirming his conviction in county court.
Fischer asserts that the district court erred in affirming his conviction and, specifically, in finding that (1) Fischer did not have a right under the Confrontation Clause to cross-examine Garner with respect to the simulator solution; (2) the county court did not err in admitting exhibits 11, 14, 16, and 17; and (3) the county court gave a proper instruction on reasonable doubt.
An appellate court reviews de novo a trial court's determination of the protections afforded by the Confrontation Clause and reviews the underlying factual determinations for clear error. State v. Hembertt, 269 Neb. 840, 696 N.W.2d 473 (2005).
Whether jury instructions given by a trial court are correct is a question of law. State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006). 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. Id. 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.
Statements in Solution Certificate Not Testimonial Under Confrontation Clause.
Fischer assigns error to the admission of exhibits 11, 14, 16, and 17, and at trial, he objected to admission of those exhibits on various bases. However, in his brief, Fischer limits his arguments on appeal to an argument that exhibit 11 was admitted in violation of his rights under the Confrontation Clause. Errors that are assigned but not argued will not be addressed by an appellate court. State v. Iromuanya, supra. Therefore, with regard to Fischer's first and second assignments of error, we...
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