Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Leibel

Supreme Court of Nebraska

October 25, 2013

State of Nebraska, Appellee,
v.
Joshua D. Leibel, Appellant.

Page 287

[Copyrighted Material Omitted]

Page 288

[Copyrighted Material Omitted]

Page 289

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, and Cassel, JJ.

Syllabus by the Court

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.

[286 Neb. 726] 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.

McCormack, J.

NATURE OF CASE

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

Page 290

(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.

BACKGROUND

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 [286 Neb. 727] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.