State v. Plant
| Decision Date | 05 October 1990 |
| Docket Number | No. 89-094,89-094 |
| Citation | 461 N.W.2d 253,236 Neb. 317 |
| Parties | STATE of Nebraska, Appellee, v. Thomas M. PLANT, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of an appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.
2. Search and Seizure: Search Warrants: Police Officers and Sheriffs. A police officer who has not obtained either an arrest or a search warrant cannot make a nonconsensual and warrantless entry into a suspect's home in the absence of exigent circumstances.
3. Criminal Law: Pretrial Procedure: Motions to Suppress: Appeal and Error. In a criminal trial, after a pretrial hearing and order overruling a defendant's motion to suppress evidence, the defendant must object at trial to admission of the evidence which was the subject of the suppression motion in order to preserve the question for appeal.
4. Search and Seizure: Words and Phrases. Exigent circumstances may be found to exist in an emergency situation.
5. Search and Seizure: Search Warrants: Police Officers and Sheriffs: Words and Phrases. The emergency doctrine allows police officers to enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance.
6. Search and Seizure: Search Warrants: Proof. In the absence of a warrant, the State has the burden to prove that a search was conducted under circumstances substantiating the reasonableness of the search or seizure.
7. Motions to Suppress: Appeal and Error. In determining the correctness of a ruling on a motion to suppress, the Supreme Court will uphold a trial court's findings of fact unless those findings are clearly wrong.
8. Trial: Evidence: Appeal and Error. It is within the trial court's discretion to admit or exclude relevant evidence which is otherwise admissible, and such ruling will be upheld on appeal absent an abuse of discretion.
9. Trial: Words and Phrases. A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
10. Rules of Evidence: Hearsay. 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 is not excluded by the hearsay rule. Neb.Rev.Stat. § 27-803(1) (Reissue 1989).
11. Trial: Evidence: Hearsay. To qualify as an excited utterance, a statement must meet the following criteria: (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.
12. Assault: Evidence: Hearsay: Time. The time lapse between an assault and the statements is not dispositive; rather, the crucial consideration is whether there has been time for conscious reflection.
13. Evidence: Hearsay. The fact that there was some questioning preceding the out-of-court declarations does not per se destroy their character as excited utterances.
14. Evidence: Hearsay. While it is not necessary to show that the declarant was visibly excited in order to qualify under 15. Rules of Evidence: Trial: Evidence: Hearsay. A hearsay statement not specifically covered by other statutory hearsay exceptions but having equivalent circumstantial guarantees of trustworthiness is admissible if the court determines that (1) the statement is offered as evidence of a material fact, (2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (3) the general purposes of the evidence rules and the interests of justice will best be served by admission of the statement into evidence. A statement may not be admitted under exception of Neb.Rev.Stat. § 27-803(22) (Reissue 1989) unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
the excited utterance exception, 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.
16. Rules of Evidence: Hearsay. The residual hearsay exception is to be used rarely and only in exceptional circumstances.
17. Trial: Evidence: Hearsay. Particularized guarantees of trustworthiness must be shown from the totality of the circumstances, which circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief. 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.
18. Rules of Evidence: Hearsay: Witnesses. The second residual hearsay exception, set forth in Neb.Rev.Stat. § 27-804 (Reissue 1989), is identical to that in Neb.Rev.Stat. § 27-803(22) (Reissue 1989) except that unavailability of the declarant must be shown.
19. Rules of Evidence: Hearsay: Witnesses. Unavailability as a witness includes situations in which the declarant is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity.
20. Rules of Evidence: Hearsay: Minors. Child victims of abuse may be unavailable for purposes of the residual hearsay exception due to the trauma resulting from the abuse.
21. Constitutional Law. Whether considering the right to confrontation under the U.S. Constitution's sixth amendment or article I, § 11, of the Nebraska Constitution, the analysis is the same.
22. Constitutional Law: States. The 6th amendment's confrontation clause is made applicable to the states through the 14th amendment.
23. Constitutional Law: Criminal Law: Trial: Witnesses. The primary interest secured by the confrontation clause is the right of cross-examination. The right to confront and cross-examine witnesses is primarily a functional right that promotes reliability in criminal trials.
24. Constitutional Law. The right to confrontation is not absolute.
25. Constitutional Law: Trial: Evidence: Hearsay. Two requirements must be met when a hearsay declarant is not available at trial. First, the confrontation clause normally requires a showing that the declarant is unavailable. Second, the statement is admissible only if it bears adequate indicia of reliability.
26. Evidence: Hearsay. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.
27. Constitutional Law: Trial: Expert Witnesses: Minors: Hearsay. A psychologist's testimony that a child victim of abuse would be unable to testify and be psychologically harmed is sufficient to show unavailability for purposes of confrontation clause analysis.
28. Constitutional Law: Rules of Evidence: Hearsay. The excited utterance hearsay exception is a firmly rooted hearsay 29. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, whether an error in admitting or excluding evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
exception for which reliability may be inferred under the confrontation clause.
30. Trial: Juries: Appeal and Error: Words and Phrases. When there is some incorrect conduct by a trial court which, on review of the record, did not materially influence the jury in a verdict adverse to a substantial right of the defendant, the error is harmless.
31. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence erroneously admitted is cumulative and other relevant evidence, properly admitted or admitted without objection, supports the finding by the trier of fact.
Thomas P. McKenney, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Marie C. Pawol, for appellee.
The defendant, Thomas M. Plant, appeals his Douglas County jury convictions for the second degree murder of his 18-month-old stepson and for the first degree assault and child abuse of his 4-year-old stepson. We affirm.
Plant received a life sentence for the second degree murder of 18-month-old Christopher Bartlett, his stepson; not less than 6 2/3 nor more than 20 years for first degree assault; and not less than 1 nor more than 3 years for child abuse. The assault and abuse sentences were concurrent with each other and consecutive to the murder sentence.
In his appeal, the defendant claims, in substance, that the trial court erred (1) in failing to suppress evidence obtained as a result of a warrantless entry into his home; (2) in receiving allegedly inadmissible hearsay evidence, i.e., out-of-court statements of Plant's 4-year-old stepson and of the defendant's own 4-year-old daughter relating to the death of the one stepson and the infliction of injuries to the second stepson; and (3) in failing to find that the admission of his daughter's and stepson's hearsay statements denied the defendant his constitutional right of confrontation.
In reviewing a criminal conviction, it is not the province of an appellate court to resolve...
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