State v. Leibel
| Decision Date | 25 October 2013 |
| Docket Number | No. S–12–1047.,S–12–1047. |
| Citation | 286 Neb. 725,838 N.W.2d 286 |
| Parties | State of Nebraska, Appellee, v. Joshua D. Leibel, Appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the District Court for Lancaster County: Karen B. Flowers, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Scott P. Helvie, and Ariel Johnson, Senior Certified Law Student, for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, andCa ssel,JJ.
1. Appeal and Error. An appellate court resolves questions of law and issues of statutory interpretation independently of the lower court's conclusion.
2. Constitutional Law: 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 reviews the underlying factual determinations for clear error.
3. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
4. Judgments: Presumptions: Appeal and Error. A judgment of the district court brought to an appellate court for review is supported by a presumption of correctness.
5. Judgments: Appeal and Error. An appellant challenging a judgment of the district court brought to an appellate court for review must both assign and specifically argue any alleged error.
6. Constitutional Law: Trial: Hearsay. Where testimonial statements are at issue, the Confrontation Clause demands that such out-of-court hearsay statements be admitted at trial only if the declarant is unavailable and there has been a prior opportunity for cross-examination.
7. Public Officers and Employees: Motor Vehicles: Records: Intent. Although the employees who create driving records may reasonably believe the records will be available for some possible future prosecution, the sole purpose of creating driving records is not to create evidence for trials.
8. Records: Witnesses. Because neutral, bureaucratic information from routinely maintained public records is not obtained by use of specialized methodology, there is little, if any, practical benefit to applying the crucible of cross-examination against those who maintain the information.
9. Constitutional Law: Trial: Witnesses: Appeal and Error. The improper admission of statements in violation of the right to confrontation is a trial error subject to harmless error review.
10. Constitutional Law: Trial: Proof: Appeal and Error. Where the trial error is of a constitutional dimension, the burden must be on the beneficiary of the error to prove beyond a reasonable doubt that the error did not contribute to the verdict obtained.
11. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
The sentencing order for the defendant's prior conviction of driving under the influence allowed him to drive with an ignition interlock permit and device. The defendant failed to obtain an ignition interlock permit or device, however, before driving. He was convicted of the felony offense of driving with a revoked license in violation of Neb.Rev.Stat. § 60–6,197.06(1) (Reissue 2010). The defendant argues that in State v. Hernandez,1 we held that § 60–6,197.06(1) is ambiguous and that ignition interlock device violations fall under a different misdemeanor statute specific to such violations. The defendant also asserts that his Department of Motor Vehicles(DMV) record and accompanying documents, as well as statements certifying their authenticity, were inadmissible hearsay and violated his right to confrontation. Finally, he asserts that his sentence was excessive. We affirm.
Joshua D. Leibel was charged under § 60–6,197.06 with operating a motor vehicle while his operator's license had been revoked, a Class IV felony. Leibel had previously been sentenced to 5 years of license revocation for a conviction of driving under the influence, third offense. The sentencing order specified that Leibel would be permitted to drive after he obtained an ignition interlock permit and equipped his vehicle with an ignition interlock device.
At the bench trial for the charge of driving with a revoked license, the State presented the testimony of a Lincoln police officer. The officer testified that on October 3, 2011, he pulled Leibel's vehicle over after observing expired tags on the license plates of the vehicle. The officer testified that during the stop, Leibel told him that his driver's license was suspended. The officer did not observe an ignition interlock device on the vehicle Leibel was driving.
The State also offered into evidence two exhibits. Exhibit 2 contained a certified copy of the 2011 sentencing order and other documents relating to the 2011 conviction. Exhibit 2 was admitted without objection.
Exhibit 1 contained the administrative order of revocation of Leibel's driver's license by the DMV and related DMV documents, as well as the “Complete Abstract of Record” for Leibel with the DMV. There was no indication in the complete DMV record that Leibel had been issued an ignition interlock permit before October 3, 2011. The abstract instead reflects that Leibel was issued an ignition interlock permit on October 4.
Each page of the abstract and accompanying DMV documents contains either the seal of the DMV or a file stamp. The abstract contains an apparent photocopy of a signed certification by a custodian of the records division, Betty Johnson, attesting it is a true and correct abstract of the operating record. This certification page also contains the raised seal of the DMV.
The DMV abstract and accompanying documents were prefaced by a letter written by the DMV program manager, Kathy Hraban, certifying that the copies of the DMV record were true and exact copies of the originals on file at the DMV. In the letter, Hraban also states that on October 3, 2011, Leibel's driving privileges had not been reinstated and Leibel did not have an ignition interlock permit.
Defense counsel objected to the entirety of exhibit 1 on foundation, relevance, hearsay, and Confrontation Clause grounds. The district court overruled Leibel's objections and received the exhibit.
After the close of the State's case in chief, defense counsel moved to dismiss the charges for failure to establish a prima facie case. Defense counsel presented no evidence in Leibel's defense and, after resting, renewed his motion to dismiss. Defense counsel argued that Leibel should have been charged with misdemeanor ignition interlock permit violations and not with the felony of driving with a revoked license.
The district court overruled Leibel's motion to dismiss. The court reasoned that Neb.Rev.Stat. § 60–6,211.05(5) (Reissue 2010) applied to persons who had obtained their ignition interlock permit as allowed by the sentencing order, while § 60–6,197.06 applied to persons who had failed to obtain their ignition interlock permit.
The district court found Leibel guilty of violating § 60–6,197.06(1). At the sentencing hearing, Leibel explained that he had been relying on his girlfriend to drive him around, but they broke up. He lives in a rural area and does not have access to public transportation. Leibel stated he had finally saved up the money to install an ignition interlock device and was going to apply for a permit. But before getting the permit, he was called into the probation office for a test. He made the decision to drive to his probation visit. After the probation visit, Leibel went to work, made a telephone call while at work to obtain the necessary car insurance, and went to get the ignition interlock device installed. According to Leibel, the person able to install the device was not available at that time and Leibel was directed to come back the next day. On his way home, Leibel was stopped by the police officer.
The court sentenced Leibel to 90 days' jail time and a 15–year license revocation. The court reasoned that it was inappropriate to simply place Leibel on probation when the offense was a probation violation. Leibel's presentence investigation report indicated multiple misdemeanor offenses and two prior convictions of driving with a suspended license, in addition to his prior convictions of driving under the influence. The court stated it would allow Leibel the opportunity to drive with an ignition interlock device and permit as soon as he was eligible by statute; and the court deferred the 90–day jail sentence until Leibel could request a work release. Leibel appeals the conviction and sentence, which was deferred until the resolution of this appeal.
Leibel asserts that the district court erred in (1) admitting exhibit 1, (2) failing to apply the reasoning of Hernandez, (3) convicting him on insufficient evidence, and (4) imposing an excessive sentence.
An appellate court resolves questions of law and issues of statutory interpretation independently of the lower court's conclusion.2
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 reviews the underlying factual determinations for clear error.3
An appellate court will not disturb a sentenceimposed within the statutory limits absent an abuse of discretion by the trial court.4
Leibel first asserts that the court erred in admitting exhibit 1 over his hearsay and Confrontation Clause objections. He points out that without exhibit 1, there would be little evidence he violated either the felony statute under which he was convicted or the...
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...confrontation that results in the improper admission of evidence is trial error subject to harmless error review. See State v. Leibel , 286 Neb. 725, 838 N.W.2d 286 (2013). The U.S. Supreme Court has said that an unconstitutional "denial of face-to-face confrontation," like other types of v......
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...S.Ct. 1431, 89 L.Ed.2d 674 (1986) (citation omitted).25 Id.26 Douglas , 380 U.S. at 418–19, 85 S.Ct. 1074. See, also, State v. Leibel, 286 Neb. 725, 838 N.W.2d 286 (2013).27 Leibel , 286 Neb. at 731, 838 N.W.2d at 293.28 State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on ......
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...827 N.W.2d 507 (2013). An appellate court resolves questions of law independently of the lower court's conclusion. See State v. Leibel, 286 Neb. 725, 838 N.W.2d 286 (2013).ANALYSIS The State sought to revoke Johnson's probation on the basis that he failed to refrain from unlawful or disorde......
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...to confront his accusers, this argument is without merit because the recordings were not testimonial in nature. See State v. Leibel, 286 Neb. 725, ___ N.W.2d ___ (2013) (where testimonial statements are at issue, Confrontation Clause demands that such out-of-court hearsay statements be admi......