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State v. Hickey

Court of Appeals of Nebraska

August 13, 2019

State of Nebraska, appellee,
v.
Shantrell A. Hickey, appellant.

         1. 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.

         2. 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.

         3. ___: ___. 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.

         4. 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.

         5. 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.

         6. 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 reversal.

         7. Evidence: Words and Phrases. Cumulative evidence means evidence tending to prove the same point of which other evidence has been offered.

         [27 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 issue.

         9. 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.

         10. ___: ___. The "original writings rule" applies only if the party offering the evidence is seeking to prove the contents of a writing, recording, or photograph.

         11. 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 characterized.

         12. 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.

         13. 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.

          Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Reversed and remanded for a new trial.

          Joe Nigro, Lancaster County Public Defender, and Nathan J. Sohriakoff for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Riedmann, Arterburn, and Welch, Judges.

          RIEDMANN, JUDGE

         INTRODUCTION

         Shantrell 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 ...


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