State v. Hembertt, No. S-04-1124.

• Court: Supreme Court of Nebraska
• Writing for the Court: GERRARD, J.
• Citation: 269 Neb. 840,696 N.W.2d 473
• Decision Date: 20 May 2005
• Docket Number: No. S-04-1124.
• Parties: STATE of Nebraska, appellee, v. David C. HEMBERTT, appellant.

696 N.W.2d 473
269 Neb. 840

STATE of Nebraska, appellee,
v.
David C. HEMBERTT, appellant

No. S-04-1124.

Supreme Court of Nebraska.

May 20, 2005.

696 N.W.2d 476

Thomas C. Riley, Douglas County Public Defender, Omaha, Joseph Kehm, and, on brief, Horacio J. Wheelock, for appellant

Jon Bruning, Attorney General, and Kevin J. Slimp, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

The defendant, David C. Hembertt, was convicted in the county court of assault and battery, based in part on the testimony of an Omaha police officer regarding statements made by the alleged victim when police arrived at the scene after the assault. The alleged victim did not testify at trial. The issues presented in this appeal are whether the officer's testimony as to the alleged victim's statements was properly admitted into evidence under the excited utterance exception to the hearsay

696 N.W.2d 477

rule and, if so, whether the statements were "testimonial" within the meaning of the Confrontation Clause standards explained in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)

BACKGROUND

At approximately 10 a.m. on April 15, 2004, John Sherman, a police officer for the city of Omaha, was on routine patrol and received an emergency call from 911 dispatching him to an Omaha residence to check on the well-being of a resident. Sherman and another officer arrived at the residence about 3 to 5 minutes after receiving the call, but were unable to get inside. A man then pulled up in front of the residence and told police he had made the 911 emergency call.

A few seconds later, a woman "came running" out of the residence. Over continuing hearsay and Confrontation Clause objections, Sherman testified at trial that the woman was "crying hysterical, trembling. She began to identify herself—as the as the residence—resident there and that she had—that she had been assaulted." The woman went directly to the man who had made the emergency call, "crying and pointing to the house saying ... he's inside. He's upstairs." Sherman testified that he observed bruises on the woman's face and body.

Sherman testified that before police asked any questions, the woman "began to explain the story that he had been attacking her, head butting her and that he had threatened her with a knife." The woman explained that "they had gotten into an argument. That he was somewhat accusing her of sleeping with another man. And as a result he started to beat her, head butted her I believe she said, threw her across a counter and up against the wall and threatened her with a knife." The woman said the incident had happened "[m]oments prior to [the officer's] arrival."

Sherman stated that they did not allow the woman to go into any more detail about the assault at that time, because they were concerned about locating the alleged assailant. Sherman and the other officer entered the residence, located the alleged assailant, and arrested him. Sherman identified Hembertt at trial as the man they arrested. A steel switchblade knife was found underneath the bed upon which Hembertt was lying.

After Hembertt was arrested, Sherman went back to interview the alleged victim. At trial, however, the county court sustained Hembertt's hearsay and Confrontation Clause objections to Sherman's testimony regarding this later questioning of the alleged victim.

Hembertt testified at trial in his own defense. Hembertt admitted knowing the alleged victim, who Hembertt testified was his girl friend. Hembertt testified that she had gotten a black eye in a fight with an emergency room nurse about a week before the alleged assault, but that he had not seen her other bruises and did not know what caused them. Hembertt denied assaulting the alleged victim.

Following a bench trial in the county court, Hembertt was convicted of assault and battery in violation of Omaha Mun.Code, ch. 20, art. IV, § 20-61 (1980), and sentenced to 90 days in jail. An appeal bond was set, and Hembertt appealed. The district court affirmed the judgment of the county court.

ASSIGNMENTS OF ERROR

Hembertt assigns that (1) the district court erred in not finding that the county court erred when it overruled his hearsay objections to Sherman's testimony and (2)

696 N.W.2d 478

even if the alleged victims statements were properly admitted under the excited utterance hearsay exception, those statements should have been barred pursuant to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution

STANDARD OF REVIEW

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. State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005). The admission of hearsay is controlled by the Nebraska Evidence Rules. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002). See State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).

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. See, U.S. v. Bordeaux, 400 F.3d 548 (8th Cir.2005); State v. Sheets, 260 Neb. 325, 618 N.W.2d 117 (2000), overruled on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

ANALYSIS

EXCITED UTTERANCE

We first consider Hembertt's argument that the trial court erred in overruling his hearsay objection to Sherman's testimony. Under Neb.Rev.Stat. § 27-801(3) (Reissue 1995), 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. State v. Duncan, 265 Neb. 406, 657 N.W.2d 620 (2003). Hearsay is not admissible except as provided by the rules of evidence or by other rules adopted by the statutes of the State of Nebraska or by the discovery rules of this court. Neb.Rev.Stat. § 27-802 (Cum.Supp.2004); State v. Neujahr, 248 Neb. 965, 540 N.W.2d 566 (1995). Sherman's testimony in this case, with respect to the statements made at the scene by the victim, clearly contains hearsay, but it was admitted pursuant to the excited utterance exception to the hearsay rule. Neb.Rev.Stat. § 27-803(1) (Cum.Supp.2004) provides that even when the declarant is available as a witness, the hearsay rule does not exclude "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

For a statement to qualify as an excited utterance, the following criteria must be met: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event. State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000). The key requirement is spontaneity, which requires a showing the statements were made without time for conscious reflection. State v. Tlamka, 244 Neb. 670, 508 N.W.2d 846 (1993), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996). Hembertt does not contest the trial court's finding that there was, in this case, a startling event to which the statements at issue related. Hembertt argues that the statements were not spontaneous.

The underlying theory of the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterance free of conscious fabrication. State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990). The true test in spontaneous exclamations is not when the exclamation was made, but

696 N.W.2d 479

whether under the circumstances of the particular exclamation, the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993), quoting 6 John H. Wigmore, Evidence in Trials at Common Law § 1745 (James H. Chadbourn rev.1976). Accord Tlamka, supra. Statements need not be made contemporaneously with the exciting cause but may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. Jacob, supra, quoting 6 Wigmore, supra, § 1750.

The record in this case clearly establishes the element of spontaneity necessary for the declarant's statements to be an excited utterance. According to Sherman's testimony, the woman said that the assault had occurred moments prior to the officer's arrival and that her statement was volunteered. Assuming Sherman's testimony to be correct, as we do on appeal, there had not been time for the exciting influence to have been dissipated. See Jacob, supra. Given Sherman's testimony, the trial court did not err in concluding that foundation for the excited utterance exception to the hearsay rule had been established.

Hembertt relies on State v. Sullivan, 236 Neb. 344, 461 N.W.2d 84 (1990), in which we found that a statement that a robber had driven a particular model of vehicle was not an excited utterance because it was made in response to a specific suggestion from a police officer. Hembertt claims that the statements at issue in the instant case were also made in response to police questioning. However, Hembertt's claim is not supported by the record. Hembertt's appellate brief quotes the following colloquy from the States direct examination of Sherman:

Q.... When [the alleged victim] initially came out to speak with [the 911 caller] and yourselves, did you inquire about—or inquire further into the nature of the call?

A. Yes, we did.

According to Hembertt, this colloquy shows that the statements were made under police interrogation. Hembertt claims that "it is undeniable that [the declarant's] statements were made in...