State v. Hale
| Decision Date | 06 February 2015 |
| Docket Number | No. S–14–183.,S–14–183. |
| Parties | State of Nebraska, appellee, v. Terrance J. Hale, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, Scott C. Sladek, Omaha, and Douglas A. Johnson for appellant.
Jon Bruning, Attorney General, and George R. Love, Lincoln, for appellee.
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 determining admissibility.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.
3. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.
4. Evidence: Appeal and Error. The relevant question when an appellate court reviews a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
5. 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.
6. Rules of Evidence: Hearsay. For a statement to be an excited utterance, the following criteria must be met: (1) There must be a startling event; (2) the statement must relate to the event; and (3) the declarant must make the statement while under the stress of the event.
7. Rules of Evidence: Hearsay. The true test for an excited utterance is not when the exclamation was made but whether, under all the circumstances, the declarant was still speaking under the stress of nervous excitement and shock caused by the event.
8. Rules of Evidence: Hearsay. Facts relevant to whether a statement is an excited utterance include the declarant's manifestation of stress, the declarant's physical condition, and whether the declarant spoke in response to questioning.
9. Rules of Evidence: Hearsay: Police Officers and Sheriffs. Statements made in response to questions from law enforcement in particular do not generally have inherent guarantees of reliability and trustworthiness. But the declarant's answer to a question may still be an excited utterance if the context shows that the statement was made without conscious reflection.
Raymond Vasholz died from inhaling smoke from a fire set in his home. His wife, Elizabeth Vasholz, testified that Terrance J. Hale broke into the house, demanded money, assaulted her and Raymond, and set several objects on fire. A jury convicted Hale of first degree murder, and the court sentenced him to life imprisonment. Hale argues that the court erred in allowing two witnesses to testify about out-of-court statements made by Elizabeth. The court overruled Hale's hearsay objections on the ground that the statements were excited utterances. Hale also contends that the evidence is not sufficient to support his conviction. We affirm.
Elizabeth, 76 years old at the time of the assault, testified that she was living with her husband, Raymond, in Omaha, Nebraska, on February 7, 2013. In the time “leading up to 9 o'clock a.m.,” Elizabeth testified that she was sitting in the living room with Raymond when she heard “[b]reaking glass” that “sounded like it was coming from the basement.” Elizabeth testified that a man wearing a coat, whom Elizabeth identified in court as Hale, came up the basement stairs. Elizabeth testified that she recognized Hale because he had done yardwork for her, but she did not know him by name.
Elizabeth testified that Hale demanded money. After she replied that she had no money, Elizabeth said that Hale assaulted her and Raymond. As Hale hit Raymond, Elizabeth recalled striking Hale's back with a lamp. Elizabeth testified that Hale grabbed “a paper” and lit it using the gas stove. Elizabeth said that Hale threw the lit paper at her and then set a couch cushion on fire and “came at” her, pushing the burning cushion against her arms.
Elizabeth testified that she escaped the house, grabbing a recycling bin to cover herself because Hale had torn off the pajama top she had been wearing. She recalled knocking on her neighbor's door, but no one answered, so she sat on her neighbor's porch and began “screaming my head off.” Elizabeth stated that Hale then came outside and “threw his coat down.” Then another man arrived, and Elizabeth asked him for help. After police arrived, Elizabeth recalled that they arrested Hale because she yelled, “That's him, that's him,” while pointing at Hale. Elizabeth stated that she suffered burns on her back and both arms and cracked vertebrae.
About 9 a.m., Gary Burns was driving in his car when he saw an elderly woman sitting outside. Burns said that the woman—who was “real dingy and dirty” and looked like “she had been beat up, basically,”—had no shirt on, and was covering herself with a recycling bin. The woman was yelling, “ ‘Help, help, help.’ ” Burns also saw a man, whom he identified in court as Hale, about 15 feet from the woman.
Burns got out of his car and called the 911 emergency dispatch service to report an assault. As he approached the woman, Burns testified that she pointed at Hale and said, “ ‘You did this, you did it.’ ” According to Burns, Hale threw up his arms and said, “ ‘I didn't do this.’ ”
Firefighters responded to an alarm for a house fire at 9:12 a.m. Smoke was escaping from the house when they arrived. Inside they found “pockets of fire” that they quickly extinguished.
The firefighters searched the house for victims and found a man, later identified as Raymond, lying across a bed in a bedroom. The firefighters carried Raymond out of the house and to the front yard, where paramedics immediately attended to him. A paramedic testified that Raymond was not breathing and did not have a pulse. Electronic monitors placed on Raymond while an ambulance transported him to a hospital showed no signs of cardiac activity.
Police officer Roger Oseka was patrolling with a training officer, Patrick Andersen, when they heard a request for assistance over the radio at 9:12 a.m. Oseka estimated that it took him and Andersen less than 5 minutes to reach the scene. When Oseka arrived, he saw an elderly white woman sitting on the “front porch” of a neighbor's house. Oseka also saw a black man, whom he identified in court as Hale, “walking in circles” and saying, “ ‘I was trying to save them.’ ”
Oseka exited his cruiser and approached the woman, whom he said was bleeding from her nose and mouth and had “burn sores” on both arms. Oseka observed the woman “throwing up or spitting into” a green recycling bin. He made contact with the woman and described her “tone” as “[s]urprisingly, for the chaotic scene ... was calm, but yet concise.” Oseka talked with the woman and—after the court overruled Hale's hearsay objection—he testified that the woman “looked past me, raised her arm and pointed it and said, ‘He did it.’ ” Oseka turned and saw Hale standing where the woman was pointing. Oseka then directed Andersen to arrest Hale.
Andersen said that the woman appeared to be in “a state of shock” and was “screaming” at them and fire personnel. When
the State asked, “[W]hat does she scream to you?” Andersen testified that the woman said, “ ” As she screamed, Andersen said that the woman pointed at a black man, whom Andersen identified in court as Hale. Andersen stated that Hale thereafter screamed, “ ”
William Guidebeck, a paramedic, arrived at about 9:19 a.m. and saw a woman sitting on a “neighbors' stoop,” cradling a green recycling bin against her chest. Guidebeck observed that she was not wearing a shirt but had a green coat with blood on it draped over her back. Guidebeck described the condition of the woman: Guidebeck also noted that she had a “significant amount of soot around her mouth and nose.”
Nevertheless, Guidebeck testified that the woman was “alert and oriented,” based on her answers to the “times three” questions of “[p]erson, place, and time.” That is, she “knew where she was at, she knew what day it was, and she was very aware of her surroundings.” Guidebeck removed the coat, and he testified that the woman “reacted in pain.”
At this point in Guidebeck's testimony, the State asked whether he had “receive[d] any response of any kind from this female patient.” Hale objected on hearsay grounds. The court overruled Hale's objection on the ground that Elizabeth's answer was an excited utterance. Guidebeck testified:
We removed the coat from her. We threw it down. Asked her if there was anybody else inside. She said her husband. We asked her if that was her husband's coat, because it was kind of odd that she didn't have a shirt on, but she had a coat draped around her. When I asked if that was her husband's coat, she said, “No.” We asked her whose coat it was, and she said, “It's his.”
After the court overruled another hearsay objection from Hale, Guidebeck testified, ...
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