State v. Jacob, S-91-109

CourtSupreme Court of Nebraska
Citation494 N.W.2d 109,242 Neb. 176
Docket NumberNo. S-91-109,S-91-109
PartiesSTATE of Nebraska, Appellee, v. Steven JACOB, Appellant.
Decision Date08 January 1993

Syllabus by the Court

1. Rules of Evidence: Hearsay. The excited utterance exception excludes from the operation of the hearsay rule statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

2. Rules of Evidence: Hearsay. 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 utterances free of conscious fabrication.

3. Rules of Evidence: Hearsay. For a statement to qualify as an excited utterance, the following criteria must be established: (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.

4. Rules of Evidence: Hearsay: Proof. The key requirement to the excited utterance exception is spontaneity, which requires a showing the statements were made without time for conscious reflection.

5. Trial: Rules of Evidence. In proceedings where the statutes embodying the rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility.

6. Rules of Evidence: Hearsay: Case Overruled. Language in cases such as In re Interest of R.A. and V.A., 225 Neb. 157, 403 N.W.2d 357 (1987), and State v. Lee, 216 Neb. 63, 341 N.W.2d 600 (1983), which suggests that the admission of an excited utterance is left to the discretion of the trial court rather than being controlled by Neb.Rev.St. § 27-803(1) (Reissue 1989) is overruled.

7. Rules of Evidence: Hearsay. A declarant's nervous state is relevant to the issue of whether the statement was made by the declarant while under the stress of the event.

8. Rules of Evidence: Hearsay. The true test in spontaneous exclamations is not when the exclamation was made, but whether under all 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.

9. Constitutional Law. The analysis of the right to confrontation under Neb. Const. art. I, § 11, is the same as that under the Sixth Amendment to the U.S. Constitution.

10. Constitutional Law: Criminal Law: Trial. The mission of the Confrontation Clauses is to advance practical concern for the accuracy of the truth determination process in criminal trials by assuring that the trier of fact has a satisfactory basis for evaluating the truth of the prior statement.

11. Constitutional Law: Criminal Law: Trial: Hearsay. While the Confrontation Clauses limit the use of hearsay testimony, they do permit its use under certain circumstances, despite a defendant's inability to confront the declarant.

12. Constitutional Law: Rules of Evidence: Hearsay: Proof. Where it is established that the declarant is unavailable, the question under the Confrontation Clauses becomes whether the State, as the proponent of evidence presumptively barred by the hearsay rule and the Confrontation Clauses, has carried its burden of proving that the declarant's statements bear sufficient indicia of reliability to withstand scrutiny under the clauses.

13. Constitutional Law: Rules of Evidence: Hearsay: Proof. The use of hearsay testimony does not violate the Confrontation Clauses if the State can demonstrate (1) the unavailability of the declarant and (2) that the declarant's statement bears adequate indicia of reliability.

14. Rules of Evidence: Hearsay. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.

15. Constitutional Law: Rules of Evidence: Hearsay. Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.

16. Rules of Evidence: Hearsay: Death. The essential element to the admission of a statement as a dying declaration is that the declarant be conscious of approaching death at the time of the making of the statement.

17. Rules of Evidence: Hearsay: Death. A declarant's belief of impending death is best shown by express communication to that effect; however, it is not necessary that a declarant state in specific terms at the time of the making of the statement her or his consciousness of impending death.

18. Rules of Evidence: Hearsay: Death: Circumstantial Evidence: Proof. A declarant's consciousness of impending death may be established by evidence other than the declarant's own statement; circumstances surrounding the death may be enough to show consciousness of impending death.

19. Rules of Evidence: Hearsay. While the residual hearsay exception is to be used rarely and only in exceptional circumstances, where the declarant is dead, the specific exceptions of both Neb.Rev.St. §§ 27-803(22) and 27-804(2)(e) (Reissue 1989) are applicable in determining the existence of equivalent circumstantial guarantees of trustworthiness.

20. Constitutional Law: Rules of Evidence: Hearsay. To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.

21. Rules of Evidence: Hearsay: Witnesses. Testimonial accuracy and a witness' perception, memory, and narrative ability are practical concerns regarding any hearsay used for conviction of a defendant.

22. Trial: Witnesses. The burden of laying a foundation by showing that the witness had an adequate opportunity to observe is upon the party offering the testimony.

23. Rules of Evidence: Witnesses. Whether a witness had the opportunity to observe and did actually observe the subject matter of the witness' testimony is a preliminary question of admissibility determined by a trial court pursuant to Neb.Rev.St. § 27-104 (Reissue 1989).

24. Rules of Evidence: Witnesses. Neb.Rev.St. §§ 27-602 and 27-701 (Reissue 1989) require that a witness testifying to objective facts must have had means of knowing the facts from the witness' personal observation.

25. Rules of Evidence: Hearsay. There is a general requirement imposed on declarations admitted under all the exceptions to the hearsay rule that the declarant, like witnesses, must have had an opportunity to observe or personal knowledge of the fact declared.

John C. Vanderslice, Lincoln, for appellant.

Don Stenberg, Atty. Gen., and J. Kirk Brown, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

Pursuant to verdict, the defendant-appellant, Steven Jacob, was adjudged guilty of two counts of murder in the first degree, in violation of Neb.Rev.Stat. § 28-303 (Reissue 1989), and of two counts of using a firearm to commit a felony, in violation of Neb.Rev.Stat. § 28-1205 (Reissue 1989). He was thereafter sentenced to life imprisonment on each of the murder convictions and to imprisonment for a period of not less than 6 2/3 nor more than 20 years on each of the firearm convictions, all sentences to run consecutively. He assigns a number of errors, including the district court's receipt into evidence of certain statements made by one of the victims. Inasmuch as that assignment is in part meritorious, we reverse and remand the cause for retrial without considering the remaining claimed errors.

II. FACTS

In February 1988, the now 37-year-old Jacob began dating the victim Melody Hopper. Hopper took Jacob to family events and often participated in activities with his mother. Jacob soon began making plans to buy a house and eventually marry Hopper. However, the relationship between the two began to deteriorate sometime in late June or early July 1989, presumably because Hopper had met the other victim, Jim Etherton.

Hopper first encountered Etherton on Mother's Day 1989 when she, her sister, and her sister's husband visited Etherton's brother, a family friend. The two began dating soon thereafter and developed a relationship described as one in which they "cared for each other quite a bit." However, Hopper had not severed all ties with Jacob. Around June 4, 1989, he and his parents were invited to attend the high school graduation of Hopper's son. At the reception which followed, Hopper introduced Jacob as her "fellow."

Later, Jacob discovered that Hopper was seeing another and had gone out of town with him. Jacob began searching for Hopper. Between June 29 and July 4, 1989, he called Hopper's son's fiance, inquiring if she knew where Hopper was. Jacob talked in a much louder and faster voice than the son's fiance had ever heard previously. Also, Jacob called Hopper's sister, inquiring as to Hopper's whereabouts.

Hopper had left with Etherton on a trip to Wyoming and, in the middle of July, moved into Etherton's residence. While watching Etherton and Hopper unload a pickup truck on July 28, 1989, one of Etherton's neighbors noticed Jacob standing by the rear corner of Etherton's house.

Immediately after arriving at her place of work at approximately 1 p.m. on August 1, 1989, Hopper stood impatiently outside her supervisor's office waiting to speak with him. As soon as the supervisor finished visiting with another person in his office, Hopper went in and sat down. She appeared "flushed," "very fidgety," and "visibly upset." The supervisor had never seen Hopper as agitated and angry as she was on that occasion.

Hopper told the supervisor that she had to talk with him and get something off her chest. She then reported that on that mornin...

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