State v. Sullivan, 89-1213
| Decision Date | 05 October 1990 |
| Docket Number | No. 89-1213,89-1213 |
| Citation | 461 N.W.2d 84,236 Neb. 344 |
| Parties | STATE of Nebraska, Appellee, v. Greg Allen SULLIVAN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pretrial Procedure: Appeal and Error. The denial of a motion in limine is not an appealable order and does not, in and of itself, constitute reversible error.
2. Trial: Evidence: Hearsay. To qualify as an excited utterance, the statement must have been made spontaneously.
3. Trial: Evidence: Hearsay. Spontaneity is a key requirement for the excited utterance exception and is demonstrated by a showing that the statement was made without time for conscious reflection.
4. Trial: Evidence: Convictions: Appeal and Error. Improper admission of evidence constitutes harmless error where the evidence is cumulative and there is other evidence to support the conviction.
5. Sentences: Appeal and Error. A sentence imposed within the limits prescribed by statute will not be disturbed on appeal absent an abuse of discretion.
Richard L. Kuhlman, for appellant.
Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, for appellee.
Before HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
After trial to a jury the defendant, Greg Allen Sullivan, was convicted of robbery and sentenced to 10 to 15 years' imprisonment with 40 days' credit for time served. He has appealed and has assigned the following errors: (1) The trial court erred in overruling his motion in limine, (2) the trial court erred in admitting the hearsay testimony of Steve Wickman, and (3) the trial court abused its discretion by imposing an excessive sentence upon him.
The record shows that on December 23, 1988, at approximately 7 p.m. a man entered Pete's Place located north of Fremont, Nebraska. He was wearing dark-green coveralls, a blue ski mask, and brown cloth gloves. The man told Pamela Shinaut Redding, who was working at that time, to give him all of the money. Redding refused, and the man came around the counter and opened the cash register. When Redding slammed the cash drawer on the man's hand, he hit her with a plastic gun. When he opened the drawer again, Redding again slammed the drawer on his hand. The man then pushed Redding back and asked her if she wanted to die. He removed $180 in 20-dollar bills from the cash register and left the store.
After following the man into the parking lot, Redding ran back into the store and dialed 911. She reported the incident, what the robber was wearing, his physical characteristics, and that she thought his license plate was 5B9534. She first described the car as a blue Chrysler, but later said that it was a dark-blue Ford Fairmont that was very dirty.
Officer Terry Duffy, after hearing a radio report of the robbery, waited north of Fremont for the suspect's vehicle to pass by. After he had started back to Fremont, he met Wickman, who flashed his headlights and indicated that he wanted Officer Duffy to stop. Wickman said that he had just been at Pete's Place and saw the robber's car leaving as he pulled into the parking lot. After Wickman learned of the robbery, he tried to follow the robber's car but lost it in traffic. Officer Duffy told Wickman that the police were looking for a Ford Fairmont, but Wickman told Duffy that the suspect's car was not a Fairmont but was another Ford product. The officer suggested the car might be a Thunderbird, and Wickman said that was what he was trying to think of and that it was an early 1980's model. Officer Duffy then radioed in this information.
Officer Duffy testified to these facts at trial. Prior to Officer Duffy's testimony before the jury, the defendant moved in limine to exclude the testimony relating to Wickman's remarks on the ground it was hearsay. The motion was overruled, and Duffy was allowed to testify on the basis of the excited utterance exception to the hearsay rule.
At about 7:16 p.m. on the night of the robbery, Officer Terry Mohler stopped the defendant west of Fremont because the defendant was driving a car that matched the description of the car used in the robbery, his dark-blue 1980 Ford Thunderbird.
Subsequent to the robbery, Redding identified the defendant's car as similar to the one that the robber drove, and she identified the defendant's voice as the robber's from two separate tape-recorded voice exemplars.
The clothes worn by the robber were found in a ditch north and west of Fremont, in the vicinity of the place where Officer Mohler had stopped the defendant. Redding identified the clothing as that worn by the robber. After initially denying that he recognized the clothing, the defendant admitted later that the clothing belonged to him.
The clothes, along with hair, blood, and saliva samples taken from the defendant, were sent to the State Patrol Criminalistics Laboratory. The serologist who performed tests on these items testified that a hair found on the ski mask was from a human Caucasian head and was quite distinctive and that the defendant's samples had the same features. She also testified that saliva or mucus found on the glove was from a nonsecretor, which nonsecretors constitute 25 percent of the population, and that the defendant's sample showed that he is a nonsecretor.
The defendant's first assignment of error is without merit. The denial of a motion in limine is not an appealable order and does not, in and of itself, constitute reversible error. State v. Tomrdle, 214 Neb. 580, 335 N.W.2d 279 (1983).
The defendant did, however, object to the testimony of Officer Duffy prior to Officer Duffy's testimony before the jury. The issue is whether it was error for the trial court to admit the testimony of Officer Duffy concerning what Wickman had said regarding the car driven by the robber.
The defendant argues that Wickman's statements to Officer Duffy should not have been admitted because Wickman was not the person who was robbed, the description of a Thunderbird resulted from "cross-examination" by a police officer, and Wickman was not cooperative because he failed to obey a subpoena and testify at trial.
In concluding that Wickman's statements to Duffy were admissible under the excited utterance exception to the hearsay rule, Neb.Rev.Stat. § 27-803(1) (Reissue 1989), the trial court stated:
This condition that must exist to determine if it's an excited utterance is set forth in State versus Lee, which is 216 Nebraska, Page 63. The first condition is there must have been a startling event. I find that there was a startling event; ie, [sic] the robbery,...
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...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 beca......
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... ... Trickey, 881 F.2d 582 (8th Cir.1989), cert. denied 493 U.S. 1087, 110 S.Ct. 1151, 107 L.Ed.2d 1055 (1990); Martinez v. Sullivan, 881 F.2d 921 (10th Cir.1989), cert. denied 493 U.S. 1029, 110 S.Ct. 740, 107 L.Ed.2d 758 (1990) ... Likewise, the district court ... ...
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...18. Mangrum, supra note 6 at 762. 19. See brief for appellee at 19. 20. See Jacob, supra note 10. 21. See, e.g., State v. Sullivan, 236 Neb. 344, 461 N.W.2d 84 (1990). Cf. Hembertt, supra note 12. 22.§ 27–803(2). 23. See id. 24. See Martensen v. Rejda Bros., 283 Neb. 279, 289, 808 N.W.2d 85......
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