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.
Rules of Evidence: Appeal and Error. In
proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility.
___. Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an
abuse of discretion.
Constitutional Law: Trial: Rules of Evidence:
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 had been a prior
opportunity for cross-examination.
Criminal Law: Appeal and Error. Harmless
error jurisprudence recognizes that not all trial errors,
even those of constitutional magnitude, entitle a criminal
defendant to the reversal of an adverse trial result.
Convictions: Appeal and Error. It is only
prejudicial error, that is, error which cannot be said to be
harmless beyond a reasonable doubt, which requires a
Evidence: Words and Phrases. Cumulative
evidence means evidence tending to prove the same point of
which other evidence has been offered.
Neb.App.517] 8. Rules of Evidence:
Testimony. Under Neb. Rev. Stat. §§ 27-701
and 27-702 (Reissue 2016), opinion testimony, whether by a
lay or expert witness, is permissible only if it is helpful
to the trier of fact in making a determination of a fact in
Rules of Evidence: Proof. Under what is
commonly and incorrectly referred to as the "best
evidence rule," in order to prove the content of a
writing, recording, or photograph, the original writing,
recording, or photograph is required.
___: ___. The "original writings rule" applies only
if the party offering the evidence is seeking to prove the
contents of a writing, recording, or photograph.
Constitutional Law: Rules of the Supreme Court:
Courts: Statutes. Strict compliance with Neb. Ct. R.
App. P. § 2-109(E) (rev. 2014) is necessary whenever a
litigant challenges the constitutionality of a statute,
regardless of how that constitutional challenge may be
Criminal Law: Evidence: New Trial: Appeal and
Error. Upon finding reversible error in a criminal
trial, an appellate court must determine whether the total
evidence admitted by the district court, erroneously or not,
was sufficient to sustain a guilty verdict.
Evidence: New Trial: Double
Jeopardy: Appeal and Error. If evidence is not
sufficient to sustain a verdict after an appellate court
finds reversible error, then double jeopardy forbids a remand
for a new trial.
from the District Court for Lancaster County: Robert R. Otte,
Judge. Reversed and remanded for a new trial.
Nigro, Lancaster County Public Defender, and Nathan J.
Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Riedmann, Arterburn, and Welch, Judges.
A. Hickey appeals his convictions in the district court for
Lancaster County of discharge of a firearm near a vehicle or
building and use of a firearm to commit a felony. We find
that the district court erred in admitting into evidence at
trial testimonial statements from a police interrogation. [27