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State v. Lindberg

Court of Appeals of Nebraska

February 6, 2018

State of Nebraska, appellee,
v.
Justin Lindberg, appellant.

         1. Rules of Evidence: Hearsay: Appeal and Error. An appellate court reviews for clear error the trial court's factual findings underpinning the excited utterance hearsay exception, resolving evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

         2. ___: ___: ___. An appellate court reviews de novo the trial court's ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds.

         3. 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 article I, § 11, of the Nebraska Constitution and reviews the underlying factual determinations for clear error.

         4. Trial: Testimony: Appeal and Error. When an objection has been made once to the admission of testimony and overruled by the court, it shall be unnecessary to repeat the same objection to further testimony of the same nature by the same witness in order to save the error, if any, in the ruling of the court whereby such testimony was received.

         5. Rules of Evidence: Hearsay: Words and Phrases. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

         6. Rules of Evidence: Hearsay. A hearsay statement may be admissible if it qualifies as an excited utterance. An excited utterance is 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.

         7. ___: ___. For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the [25 Neb.App. 516] statement must have been made by the declarant while under the stress of the event.

         8. ___: ___. The underlying theory of the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity for reflection and produces utterances free of conscious fabrication.

         9. Constitutional Law: Criminal Law: Witnesses. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution provide for the accused in a criminal prosecution to be confronted with the witnesses against him.

         10. Constitutional Law: Trial: Hearsay. Where testimonial statements are at issue, the Confrontation Clause demands that such hearsay statements be admitted at trial only if the declarant is unavailable and there has been a prior opportunity for cross-examination.

         11. ___: ___: ___. If statements offered at trial are nontestimonial, then no further Confrontation Clause analysis is required.

         12. Constitutional Law: Hearsay. The initial step in determining whether there has been a Confrontation Clause violation usually involves a determination of whether the statements at issue are testimonial in nature.

         13. Constitutional Law: Trial: Witnesses. The purpose of the Confrontation Clause is to allow an accused the opportunity to personally examine the witness and give him or her the opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jurors in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

         14. ___: ___: ___. The Confrontation Clause is not violated by admitting a declarant's out-of-court statements so long as the declarant testifies as a witness and is subject to full and effective cross-examination.

         Appeal from the District Court for Hall County, Teresa K. Luther, Judge, on appeal thereto from the County Court for Hall County, Philip M. Martin, Jr., Judge. Judgment of District Court affirmed.

          Robert W. Alexander, Deputy Hall County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and Joe ...


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