Appeal from the District Court for Douglas County: LEIGH ANNNN RETELSDORF, Judge.
Thomas C. Riley, Douglas County Public Defender, Scott C. Sladek, and Douglas A. Johnson for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., participating on briefs.
[290 Neb. 71] Connolly, J.
Raymond Vasholz died from inhaling smoke from a fire set in his home. His wife, Elizabeth Vasholz, testified that Terrance J. Hale broke into the house, demanded money, assaulted her and Raymond, and set several objects on fire. A jury convicted Hale of first degree murder, and the court sentenced him to life imprisonment. Hale argues that the court erred in allowing two witnesses to testify about out-of-court statements made by Elizabeth. The court overruled Hale's hearsay objections on the ground that the statements were excited utterances. Hale also contends that the evidence is not sufficient to support his conviction. We affirm.
[290 Neb. 72] BACKGROUND
Fire and Immediate Response
Elizabeth, 76 years old at the time of the assault, testified that she was living with her husband, Raymond, in Omaha, Nebraska, on February 7, 2013. In the time " leading up to 9 o'clock a.m.," Elizabeth testified that she was sitting in the living room with Raymond when she heard " [b]reaking glass" that " sounded like it was coming from the basement." Elizabeth testified that a man wearing a coat, whom Elizabeth identified in court as Hale, came up the basement stairs. Elizabeth testified that she recognized Hale because he had done yardwork for her, but she did not know him by name.
Elizabeth testified that Hale demanded money. After she replied that she had no money, Elizabeth said that Hale assaulted her and Raymond. As Hale hit Raymond, Elizabeth recalled striking Hale's back with a lamp. Elizabeth testified that Hale grabbed " a paper" and lit it using the gas stove. Elizabeth said that Hale threw the lit paper at her and then set a couch cushion on fire and " came at" her, pushing the burning cushion against her arms.
Elizabeth testified that she escaped the house, grabbing a recycling bin to cover herself because Hale had torn off the pajama
top she had been wearing. She recalled knocking on her neighbor's door, but no one answered, so she sat on her neighbor's porch and began " screaming my head off." Elizabeth stated that Hale then came outside and " threw his coat down." Then another man arrived, and Elizabeth asked him for help. After police arrived, Elizabeth recalled that they arrested Hale because she yelled, " That's him, that's him," while pointing at Hale. Elizabeth stated that she suffered burns on her back and both arms and cracked vertebrae.
About 9 a.m., Gary Burns was driving in his car when he saw an elderly woman sitting outside. Burns said that the woman--who was " real dingy and dirty" and looked like " she had been beat up, basically," --had no shirt on, and was covering herself with a recycling bin. The woman was yelling, " 'Help, help, help.'" Burns also saw a man, whom he identified in court as Hale, about 15 feet from the woman.
[290 Neb. 73] Burns got out of his car and called the 911 emergency dispatch service to report an assault. As he approached the woman, Burns testified that she pointed at Hale and said, " 'You did this, you did it.'" According to Burns, Hale threw up his arms and said, " 'I didn't do this.'"
Firefighters responded to an alarm for a house fire at 9:12 a.m. Smoke was escaping from the house when they arrived. Inside they found " pockets of fire" that they quickly extinguished.
The firefighters searched the house for victims and found a man, later identified as Raymond, lying across a bed in a bedroom. The firefighters carried Raymond out of the house and to the front yard, where paramedics immediately attended to him. A paramedic testified that Raymond was not breathing and did not have a pulse. Electronic monitors placed on Raymond while an ambulance transported him to a hospital showed no signs of cardiac activity.
Police officer Roger Oseka was patrolling with a training officer, Patrick Andersen, when they heard a request for assistance over the radio at 9:12 a.m. Oseka estimated that it took him and Andersen less than 5 minutes to reach the scene. When Oseka arrived, he saw an elderly white woman sitting on the " front porch" of a neighbor's house. Oseka also saw a black man, whom he identified in court as Hale, " walking in circles" and saying, " 'I was trying to save them.'"
Oseka exited his cruiser and approached the woman, whom he said was bleeding from her nose and mouth and had " burn sores" on both arms. Oseka observed the woman " throwing up or spitting into" a green recycling bin. He made contact with the woman and described her " tone" as " [s]urprisingly, for the chaotic scene . . . was calm, but yet concise." Oseka talked with the woman and--after the court overruled Hale's hearsay objection--he testified that the woman " looked past me, raised her arm and pointed it and said, 'He did it.'" Oseka turned and saw Hale standing where the woman was pointing. Oseka then directed Andersen to arrest Hale.
Andersen said that the woman appeared to be in " a state of shock" and was " screaming" at them and fire personnel. When [290 Neb. 74] the State asked, " [W]hat does she scream to you?" Andersen testified that the woman said, " 'That's him. He did this.'" As she screamed, Andersen said that the woman pointed at a black man, whom Andersen identified in court as Hale. Andersen stated that Hale thereafter screamed, " 'I ...