State v. Trice ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
01/15/2016 12:05 PM CST
- 482 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
State of Nebraska, appellee, v.
De’A ris R. Trice, appellant.
___ N.W.2d ___
Filed January 15, 2016. No. S-14-1139.
1. Rules of Evidence: Hearsay: Witnesses: Proof: Appeal and Error.
For purposes of hearsay analysis, it is within the discretion of the trial
court to determine whether the unavailability of a witness has been
shown. Where the rules of evidence commit the evidentiary question at
issue to the discretion of the trial court, the admissibility of evidence is
reviewed for an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination whether the
court admitted evidence over a hearsay objection or excluded evidence
on hearsay grounds.
4. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court. An abuse of discretion in imposing a sentence occurs
when a sentencing court’s reasons or rulings are clearly untenable and
unfairly deprive the litigant of a substantial right and a just result.
5. Witnesses: Evidence: Proof. The burden to establish a declarant’s
unavailability is on the party seeking to introduce the evidence.
6. Criminal Law: Trial: Witnesses: Evidence. In a criminal case, a wit-
ness is not unavailable unless the prosecutorial authorities have made a
good faith effort to obtain the witness’ presence at trial. There must be
evidence of diligence on the part of the prosecution to locate the witness
and evidence of the unavailability of the witness to testify.
- 483 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
7. Rules of Evidence: Witnesses. When considering whether a good
faith effort to procure a witness has been made under Neb. Rev. Stat.
§ 27-804(1)(e) (Reissue 2008), the proper inquiry is whether the means
utilized by the proponent prior to trial were reasonable, not whether
other means remain available at the time of trial or whether additional
steps might have been undertaken.
8. Trial: Evidence: Appeal and Error. On appeal, a defendant may not
assert a different ground for his objection to the admission of evidence
than was offered to the trier of fact.
9. Appeal and Error. An objection, based on a specific ground and prop-
erly overruled, does not preserve a question for appellate review on any
other ground.
10. ____. In the absence of plain error, where an issue is raised for the first
time in an appellate court, it will be disregarded inasmuch as a lower
court cannot commit error in resolving an issue never presented and
submitted to it for disposition.
11. Convictions: Evidence. Where the evidence is cumulative and there is
other competent evidence to support the conviction, the improper admis-
sion or exclusion of evidence is harmless beyond a reasonable doubt.
12. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense, and (8) the amount of violence
involved in the commission of the crime.
13. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
14. ____: ____. An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the trial
court.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
Patrick P. Carney, of Carney Law, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
- 484 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
Wright, Connolly, McCormack, Miller-Lerman, Cassel,
and Stacy, JJ.
Stacy, J.
I. INTRODUCTION
This is the second direct appeal brought by De’Aris R.
Trice, challenging his conviction for second degree murder.
In his first direct appeal, we concluded the jury had not been
properly instructed on the interplay between second degree
murder and sudden quarrel manslaughter.1 We noted the step
instruction used by the trial court was correct when given, but
our subsequent holding in State v. Smith2 rendered the instruc-
tion an incorrect statement of the law. We reversed the judg-
ment and remanded the cause for another trial.
On remand, Trice waived a jury. Following a 2-day bench
trial, he again was found guilty of second degree murder and
again was sentenced to a prison term of 40 years to life. He
timely filed this direct appeal, assigning error to various evi-
dentiary rulings and arguing the sentence imposed was exces-
sive. Finding no reversible error, we affirm.
II. BACKGROUND
On December 26, 2010, Timothy Warren was stabbed when
a fight broke out during a party in Norfolk, Nebraska. Warren
died from his injuries.
Our opinion in State v. Trice3 recited the circumstances sur-
rounding the stabbing and summarized the evidence adduced
at Trice’s first trial. In most respects, the evidence adduced at
Trice’s second trial was similar to that adduced at his first trial.
We recite here only that evidence from the second trial which
is relevant to the errors assigned on appeal.
1
See State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013).
2
State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
3
State v. Trice, supra note 1.
- 485 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
1. Testimony of Robyn Baldwin
In the first trial, Robyn Baldwin testified and was cross-
examined. She was subpoenaed to appear as a witness in the
second trial, but failed to appear. In the first trial, Baldwin tes-
tified that the day before the stabbing, she overheard her sister,
Trice’s girlfriend, tell him she wanted to end the relationship.
Baldwin then heard Trice respond: “‘Well, if you’re done with
me, then I might as well just kill myself or hurt somebody . . .
I’ll just go murder somebody. I might as well be in jail without
you in my life.’”
Roughly 1 month before Trice’s second trial, the State
served Baldwin with a subpoena to testify. The deputy sheriff
who served the subpoena testified he called Baldwin on her
cell phone and she agreed to meet him later that day to accept
service. He personally served Baldwin with the subpoena.
The district court clerk who was responsible for checking
in subpoenaed witnesses during the second trial testified that
Baldwin had not appeared and had not telephoned the court to
indicate she would be late. A Norfolk police officer who was
familiar with Baldwin also testified he had “been all through”
the courthouse while witnesses were showing up for trial and
did not see Baldwin.
The State asked the court to find Baldwin unavailable
under Neb. Rev. Stat. § 27-804(1)(e) (Reissue 2008) and
offered a transcript of Baldwin’s testimony from the first
trial. Trice objected, pointing out Baldwin lived in the area
and “had been found” previously. The trial court concluded
Baldwin was unavailable and received the transcript of her
testimony from the first trial into evidence over Trice’s hear-
say objection.
2. Testimony of Ronald Trice
Trice’s brother Ronald testified and was cross-examined
in the first trial but was not present for the second trial. In
the first trial, Ronald testified about Trice’s activities in the
days leading up to the party and described what happened
- 486 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
during the party, both before and after the stabbing. Ronald
also testified about a conversation he had with Trice shortly
after the stabbing. During this conversation, Ronald asked
Trice “five or six times” whether he was responsible for the
stabbing and each time Trice denied stabbing anyone. Ronald
then said, “‘I don’t need you to lie to me, did you do it?’” to
which Trice replied, “‘Yeah, I — I had to, I had to protect you
and me.’”
About 6 weeks before the second trial, the State filed a
“Certificate to Compel Attendance of Witness” seeking to
have Ronald served with process in Chicago, Illinois, where
it was understood he was living. Roughly 20 days before
trial, the State discovered the paperwork had not arrived in
Chicago due to a clerical mistake. The paperwork was imme-
diately reissued, and the State contacted the extradition unit
in Chicago to request expedited service. The extradition unit
agreed to make it a “top priority” and indicated it would use
investigators to locate and serve Ronald. The State stayed in
contact with the authorities in Chicago up to and including
the time of trial. One week before trial, Chicago authori-
ties reported an investigator had gone to Ronald’s address
to attempt service. The investigator made contact there with
Ronald’s parents, who reported Ronald was no longer in
Illinois. The investigator was unable to serve Ronald and did
not have any other information on his whereabouts, but did
learn Ronald might be planning to return to Norfolk for trial.
The possibility that Ronald planned to be in Norfolk during
trial was supported by Ronald’s former girlfriend, who testi-
fied she asked Ronald “whether or not he’s going to appear
in court,” and he replied that “he will be in town, but he’s
not testifying.”
The State suggested Ronald was actively resisting efforts
to procure his attendance and asked the trial court to find him
unavailable under § 27-804(1)(e). Trice argued the State had
not made a sufficient effort to procure Ronald’s attendance
and thus had not shown he was unavailable. The court found
- 487 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
Ronald was unavailable and received the transcript of his
testimony from the first trial into evidence over Trice’s hear-
say objection.
3. Testimony of Guadalupe R eyes
Guadalupe Reyes testified that at the time of the stabbing,
she was dating Jaron Hoard. Hoard was one of two eyewit-
nesses who testified to seeing Trice stab the victim. Reyes did
not attend the party, but she testified that a few hours after the
party, Hoard came home “crying” and under “[a] lot of stress.”
Reyes asked Hoard what was wrong, and he replied that “his
friend got stabbed.” Trice objected to Reyes’ testimony regard-
ing Hoard’s statement on hearsay grounds. The trial court
overruled the hearsay objection, finding the statement was
admissible as a prior consistent statement under Neb. Rev. Stat.
§ 27-801(4)(a)(ii) (Reissue 2008). The trial court expressly
rejected the State’s alternative theory that Hoard’s statement
was admissible as an excited utterance under Neb. Rev. Stat.
§ 27-803(1) (Reissue 2008).
4. Telephone Call Between
Trice and His Father
After Trice was arrested and while he was being held in
jail, Trice had a telephone conversation with his father. The
conversation was recorded by the jail. A portion of the call
was transcribed and offered by the State at the second trial.
The transcript shows Trice’s father asked him, “What are you
pleading?” and Trice answered, “Not Guilty.” His father then
asked, “By reason of what? Self-defense?” and Trice replied,
“Yes sir.” The State suggested Trice’s response (that he planned
to claim self-defense) amounted to an admission that he had
stabbed the victim.
Trice objected to the admission of the transcript on grounds
his father’s statements were inadmissible hearsay. The court
overruled the hearsay objection and received the transcript into
evidence, concluding the conversation amounted to an adop-
tive admission under § 27-801(4)(b).
- 488 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
At the conclusion of the 2-day bench trial, Trice was found
guilty of second degree murder. After requesting an update to
the presentence investigation, the trial court sentenced Trice to
a term of 40 years to life in prison. Trice timely appealed.
III. ASSIGNMENTS OF ERROR
Trice assigns the trial court erred in (1) finding Baldwin and
Ronald unavailable and admitting transcripts of their testimony
from the first trial over Trice’s hearsay objection, (2) admitting
Reyes’ testimony over Trice’s hearsay objection, (3) admitting
the transcript of the jail call over Trice’s hearsay objection, and
(4) imposing an excessive sentence.
IV. STANDARD OF REVIEW
[1,2] For purposes of hearsay analysis, it is within the
discretion of the trial court to determine whether the unavail-
ability of a witness has been shown.4 Where the rules of
evidence commit the evidentiary question at issue to the
discretion of the trial court, the admissibility of evidence is
reviewed for an abuse of discretion.5 A judicial abuse of dis-
cretion exists only when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a sub­
stantial right and denying a just result in matters submitted
for disposition.6
[3] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination whether the court admitted
evidence over a hearsay objection or excluded evidence on
hearsay grounds.7
4
See, State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012); State v. Carter,
255 Neb. 591, 586 N.W.2d 818 (1998).
5
State v. Kitt, supra note 4.
6
Id.
7
State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012).
- 489 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court.8 An abuse of discretion in imposing a sentence
occurs when a sentencing court’s reasons or rulings are clearly
untenable and unfairly deprive the litigant of a substantial right
and a just result.9
V. ANALYSIS
1. Hearsay Exception: Unavailability
Under § 27-804(1)(e)
Trice claims the trial court erred when it found Baldwin
and Ronald were unavailable and admitted transcripts of their
prior trial testimony under the exception to hearsay found in
§ 27-804(2)(a). Under that statute, testimony given by a wit-
ness at a prior proceeding is not “excluded by the hearsay rule
if the declarant is unavailable as a witness.”10
Section 27-804(1)(e) defines “unavailability” to include situ-
ations where a witness “[i]s absent from the hearing and the
proponent of his statement has been unable to procure his
attendance by process or other reasonable means.” A declarant
is not unavailable if his absence is due to the “wrongdoing of
the proponent of his statement for the purpose of preventing
the witness from attending or testifying.”11
[5,6] The burden to establish a declarant’s unavailability is
on the party seeking to introduce the evidence.12 In a crimi-
nal case, a witness is not unavailable unless the prosecutorial
authorities have made a good faith effort to obtain the witness’
8
State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014).
9
State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
10
§ 27-804(2).
11
§ 27-804(1)(e). Accord State v. Wiley, 223 Neb. 835, 394 N.W.2d 641
(1986) (holding requirement of unavailability under § 27-804 is not
satisfied if proponent has caused unavailability).
12
State v. Carter, supra note 4.
- 490 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
presence at trial.13 There must be evidence of diligence on
the part of the prosecution to locate the witness and evidence
of the unavailability of the witness to testify.14 For purposes
of hearsay analysis, it is within the discretion of the trial
court to determine whether the unavailability of a witness has
been shown.15
Trice assigns error to the court’s finding of unavailabil-
ity, arguing the State failed to make a good faith effort to
procure the attendance of both Baldwin and Ronald at the
second trial. We analyze the State’s efforts regarding each wit-
ness separately.
(a) Unavailability of Baldwin
In prior cases, we have addressed unavailability when a
witness cannot be located,16 when a witness is outside the
subpoena power of the court,17 and when a witness is pres-
ent at trial but refuses to testify.18 This case presents our
first opportunity to address unavailability when a witness has
been located and served with a subpoena, but fails to appear
for trial.
We begin by noting that the plain language of § 27-804(1)(e)
provides a witness can be procured “by process or other rea-
sonable means.” We understand this language to indicate proc­
ess is not just one of the reasonable means of procuring a
witness at trial, it is the preferred means. When a witness
against an accused in a criminal case is within the reach of
process, the prosecution generally must resort to process to
13
Id.
14
Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953).
15
State v. Kitt, supra note 4; State v. Carter, supra note 4.
16
State v. Carter, supra note 4.
17
State v. Carter, 226 Neb. 636, 413 N.W.2d 901 (1987); State v. Williams,
211 Neb. 693, 320 N.W.2d 105 (1982).
18
State v. Kitt, supra note 4.
- 491 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
satisfy the good faith standard.19 This is so even when a wit-
ness is outside a court’s subpoena power.20 While issuance of
a subpoena is not an absolute prerequisite to proving a witness
is unavailable,21 serving a witness with a subpoena to testify
ordinarily constitutes a sufficient good faith effort to procure
the witness’ attendance at trial.22
Trice argues that merely serving the subpoena on Baldwin
was insufficient evidence of good faith. He argues that when
Baldwin failed to appear, the State should have requested a
bench warrant, and he suggests it was error to find Baldwin
unavailable before additional steps were taken to enforce
the subpoena.
In Ohio v. Roberts,23 the U.S. Supreme Court explained that
“‘[t]he lengths to which the prosecution must go to produce a
witness . . . is a question of reasonableness.’” The Court rec-
ognized a temporal component to the good faith inquiry when
it observed that “[t]he ultimate question is whether the witness
is unavailable despite good-faith efforts undertaken prior to
trial to locate and present that witness.”24
19
2 McCormick on Evidence § 253 (Kenneth S. Broun et al. eds., 7th ed.
2013).
20
See Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968)
(where witness was inmate housed in another state, good faith effort to
obtain presence of witness at trial required prosecution to at least attempt
to secure his presence through available process, such as writ of habeas
corpus ad testificandum).
21
Hardy v. Cross, ___ U.S. ___, 132 S. Ct. 490, 181 L. Ed. 2d 468 (2011).
22
See, e.g., Morgan v. State, 903 N.E.2d 1010 (Ind. App. 2009); Cross v.
State, 144 Md. App. 77, 796 A.2d 145 (2002); State v. Schilling, 474
N.W.2d 203 (Minn. App. 1991); State v. Dillon, 191 W. Va. 648, 447
S.E.2d 583 (1994).
23
Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)
(quoting California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed.
2d 489 (1970) (Burger, C.J., concurring)), abrogated on other grounds,
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).
24
Id. (emphasis supplied).
 - 492 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
[7] When considering whether a good faith effort to procure
a witness has been made under § 27-804(1)(e), the proper
inquiry is whether the means utilized by the proponent prior
to trial were reasonable, not whether other means remain
available at the time of trial or whether additional steps might
have been undertaken.25 “[W]hen a witness disappears before
trial, it is always possible to think of additional steps that the
prosecution might have taken to secure the witness’ presence,”
but the prosecution is not required “to exhaust every avenue of
inquiry” to demonstrate unavailability.26
We find no abuse of discretion in the trial court’s conclu-
sion that Baldwin was unavailable. The State made a good
faith effort to secure Baldwin’s attendance at trial by person-
ally serving her with a subpoena to testify roughly 1 month
before trial. And while Baldwin ultimately failed to obey the
subpoena, there was no evidence her absence at trial was due
to any prosecutorial wrongdoing.
We are not persuaded by Trice’s argument that unavail-
ability was not shown because no bench warrant was issued
after Baldwin failed to appear. When a subpoenaed witness
fails to comply with process and is absent from the trial due
to no wrongdoing of the proponent, decisions about whether
additional efforts to obtain the presence of the witness would
be successful or practicable are properly left to the discretion
of the trial court.27
On this record, the trial court did not abuse its discretion by
making the unavailability determination without first requiring
25
See Hardy v. Cross, supra note 21. See, also, 23 C.J.S. Criminal Law
§ 1476 at 458 (2006) (“[t]he question is whether good-faith efforts were
made to procure the testimony of a witness, not whether increased efforts
would have produced testimony”).
26
Hardy v. Cross, supra note 21, 132 S. Ct. at 495.
27
Accord Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992) (superseded
in part by statute as stated in Walton v. Patil, 279 Neb. 974, 783 N.W.2d
438 (2010)).
- 493 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
efforts to enforce the subpoena. We assume a motion for
bench warrant would have been sustained if requested, but no
such request was made. And when the issue of unavailability
was presented to the trial court for ruling, neither party sug-
gested a ruling was premature or should be postponed, or that
additional steps would be successful in obtaining Baldwin’s
presence. While the trial court certainly had discretion—even
without a motion—to issue an attachment for the arrest of
Baldwin when she failed to obey the subpoena,28 we cannot
conclude it was an abuse of discretion not to issue an attach-
ment under the circumstances.29 This assignment of error is
without merit.
(b) Unavailability of Ronald
The State did not locate Ronald or serve him with process
compelling his appearance as a witness in the second trial. The
issue on appeal is whether the prosecution made a diligent,
good faith effort to locate Ronald and procure his attendance at
the second trial.30
In Callies v. State,31 we found reversible error in the trial
court’s conclusion that the witness was unavailable. The record
contained little more than the prosecutor’s unsworn statement
that a subpoena had been “issued and returned,”32 unserved,
and the prosecutor’s suggestion that the “witness could not
28
Neb. Rev. Stat. § 25-1230 (Reissue 2008) (when witness fails to appear in
obedience to subpoena, courts “may issue an attachment to the sheriff . . .
to arrest and bring the person therein named before the court” to give his
or her testimony and “answer for the contempt”).
29
See, e.g., Hardy v. Cross, supra note 21; Cross v. State, supra note 22
(holding trial court did not abuse its discretion in finding unavailable two
witnesses who had been subpoenaed but failed to appear at trial, despite
fact that prosecution did not request attachment order to hold witnesses
in jail).
30
State v. Carter, supra note 4; Callies v. State, supra note 14.
31
Callies v. State, supra note 14.
32
Id. at 648, 61 N.W.2d at 376.
- 494 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
be located.”33 We observed that neither the subpoena nor
the return was in evidence and that the prosecution had not
offered testimony from any officer who attempted to serve the
subpoena. As such, we had no evidence on which to deter-
mine whether a diligent search had been conducted, whether
the whereabouts of the witness were known, or whether the
witness could be located. We announced “[t]here must be
evidence of diligence on the part of the prosecution to locate
the witness, and evidence of the unavailability of the witness
to testify.”34
In State v. Williams,35 we found no abuse of discretion in
the trial court’s ruling that one of the witnesses who had testi-
fied at the preliminary hearing was unavailable at the time of
trial. The evidence established that about 1 week before trial,
the prosecution learned the witness had moved from the area
and was living at an address in either Creston, Iowa; Creston,
Nebraska; or Crescent, Iowa. A police officer attempted to
contact the witness in all three towns, and eventually deter-
mined the address in Crescent was correct. The officer con-
tacted the sheriff’s office in Crescent and asked that a deputy
be sent to the address to serve a subpoena. Despite these
efforts, by the time trial commenced, the witness had not been
located and the subpoena remained unserved. We concluded
the prosecution had made a reasonably diligent search and
inquiry into the witness’ whereabouts, and there was sufficient
evidence to establish the witness was unavailable at the time
of trial.
In State v. Carter,36 we found the prosecution had met
its burden of showing good faith and diligence in attempt-
ing to locate and produce a witness who had testified in the
33
Id.
34
Id. at 649, 61 N.W.2d at 376.
35
State v. Williams, supra note 17.
36
State v. Carter, supra note 4.
- 495 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
defendant’s first murder trial, but had not been located or
served with process before his subsequent trial. The evidence
showed that about 2 weeks before the subsequent trial began,
the State filed a praecipe for subpoena to compel the witness’
attendance. Efforts to serve the subpoena at known addresses
for the witness were unsuccessful. Officers contacted relatives,
and eventually learned the witness had moved to Arkansas.
Officers contacted authorities there and learned the witness
had applied for an Arkansas driver’s license several months
earlier using an address in West Helena, Arkansas. Prosecutors
then requested an order compelling attendance of the witness
and relayed it to the court in West Helena, which court sub-
sequently issued the order and delivered it to the local police
department for service. Arkansas police searched for the wit-
ness but could not locate her. Arkansas police spoke to the
witness’ sister, who was uncooperative and reported she had
not seen the witness for a week. A car registered to the wit-
ness was placed under surveillance, but the witness had not
been located by the time of the hearing to determine unavail-
ability, which was scheduled 2 days before the start of trial.
After reviewing the record, we concluded the State had made
a good faith, diligent effort to locate the witness prior to trial
and the court had not abused its discretion in finding the wit-
ness was unavailable.
Our review of the record in the present case shows the pros-
ecution’s efforts to locate and serve Ronald were strikingly
similar to those we found in Carter had satisfied the standard
of diligence and good faith. Here, the prosecution demon-
strated considerable coordination with out-of-state authorities
in an effort to locate and serve Ronald with process to compel
his attendance at trial. Those coordinated efforts began well in
advance of trial and continued up to the time of trial. We con-
clude there was no abuse of discretion in the trial court’s find-
ing that the State made a diligent, good faith effort to locate
Ronald and secure his presence at trial and that Ronald was
unavailable under § 27-804(1)(e).
- 496 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
(c) Unavailability and
Confrontation Clause
[8-10] In his brief, Trice also argues the admission of
Baldwin’s and Ronald’s prior testimony violated his rights
under the Confrontation Clause. However, Trice did not raise
a Confrontation Clause objection at trial. On appeal, a defend­
ant may not assert a different ground for his objection to the
admission of evidence than was offered to the trier of fact.37
An objection, based on a specific ground and properly over-
ruled, does not preserve a question for appellate review on
any other ground.38 In the absence of plain error, where an
issue is raised for the first time in an appellate court, it will
be disregarded inasmuch as a lower court cannot commit
error in resolving an issue never presented and submitted to
it for disposition.39 Finding no plain error in the trial court’s
ruling concerning the unavailability of Baldwin and Ronald,
we reject Trice’s Confrontation Clause argument without fur-
ther discussion.
2. R eyes’ Testimony as Hearsay
Over Trice’s hearsay objection, the court permitted Reyes to
testify that when Hoard arrived home from the party, he told
her “his friend got stabbed.” The trial court concluded Hoard’s
statement was admissible as a prior consistent statement under
§ 27-801(4)(a)(ii). The court expressly rejected the State’s
alternative position that Hoard’s statement was admissible as
an excited utterance under § 27-803(1).
On appeal, Trice argues the trial court erred in overruling
his hearsay objection because Hoard’s testimony had not been
attacked in such a manner that a prior consistent statement
was warranted to rebut an express or implied charge of recent
37
State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003).
38
Id.
39
State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).
- 497 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
fabrication.40 The State concedes in its brief that the elements
necessary to admit a prior consistent statement are not present.
However, the State suggests it was not reversible error to over-
rule the hearsay objection, because Hoard’s statement should
have been admitted under the excited utterance exception to
the hearsay rule.41
Even assuming the statement “his friend got stabbed” was
being offered for its truth, we need not consider whether
Hoard’s statement to Reyes was an excited utterance or a prior
consistent statement, because we conclude any error in over-
ruling Trice’s hearsay objection and admitting the statement
was harmless. The evidence was cumulative, because Hoard
also testified about his statement to Reyes. In the second trial,
Hoard testified that after he returned home, he told Reyes, “I
just seen my — I just witnessed my friend just get stabbed.”
The admission of Hoard’s own testimony in this regard is not
assigned as error on appeal.
[11] Where the evidence is cumulative and there is other
competent evidence to support the conviction, the improper
admission or exclusion of evidence is harmless beyond a
reasonable doubt.42 We conclude that any error in admitting
Reyes’ testimony was harmless beyond a reasonable doubt and
does not require reversal.
3. Transcript of Telephone
Call as Hearsay
Trice argues the trial court erred in overruling his hear-
say objection to the partial transcript of the jail call between
Trice and his father. The State responds that the conversation
amounted to an adoptive admission under § 27-801(4)(b)(ii)
and that the court correctly overruled the hearsay objection on
that ground.
40
See § 27-801(4)(a)(ii).
41
See § 27-803(1).
42
State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000).
- 498 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
Section 27-801(4)(b) excludes from the definition of hear-
say a statement which is “offered against a party and is . . .
(ii) a statement of which he has manifested his adoption or
belief in its truth.” “Where the party against whom a state-
ment is offered is present, hears the statement being made, and
makes no objection” the trial court may admit such evidence
as nonhearsay.43
Here, Trice and his father were talking to one another on
the telephone. When Trice told his father he was entering a
plea of not guilty, his father asked, “By reason of what? Self-
defense?” Trice replied, “Yes sir.” Assuming without deciding
that the father’s question constituted an assertion subject to
the hearsay rule, it is clear Trice heard his father’s words and
expressed agreement with them. The trial court correctly over-
ruled Trice’s hearsay objection and admitted this as nonhear-
say under § 27-801(4)(b)(ii).
Trice also argues that admission of the jail-call tran-
script violated his rights under the Confrontation Clause.
We do not reach this argument, because Trice did not raise
a Confrontation Clause objection at trial, and he cannot now
assert a different ground for his objection than was offered to
the trier of fact.44
4. Excessive Sentence
Trice was convicted of second degree murder, a Class IB
felony.45 The statutory sentencing range for Class IB felonies
is 20 years to life in prison.46 Trice was sentenced to a prison
term of 40 years to life—the same indeterminate sentence
imposed following his first trial.
[12-14] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality,
43
In re Interest of M., 215 Neb. 383, 390, 338 N.W.2d 764, 769 (1983).
44
State v. Shipps, supra note 37.
45
See Neb. Rev. Stat. § 28-304 (Reissue 2008).
46
Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).
- 499 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
(3) education and experience, (4) social and cultural back-
ground, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved
in the commission of the crime.47 Where a sentence imposed
within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether the sentencing
court abused its discretion in considering and applying the
relevant factors as well as any applicable legal principles in
determining the sentence to be imposed.48 An appellate court
will not disturb a sentence imposed within the statutory limits
absent an abuse of discretion by the trial court.49
Trice concedes his sentence of 40 years to life in prison is
within the statutory range, but argues on appeal that the maxi-
mum term of life in prison amounts to an abuse of discretion.
Trice suggests the trial court did not give sufficient consider-
ation to his age, his educational struggles, or his limited crimi-
nal history. Our review of the record shows otherwise.
When imposing sentence, the trial court considered the
information in the original and updated presentence investi-
gation reports and the information provided during both sen-
tencing hearings. The presentence report indicates Trice was
21 years old when the crime was committed. He dropped out
of school in the 10th grade and was diagnosed with a learn-
ing disability. Trice had an extensive juvenile history in both
Illinois and Nebraska, but this murder was his first felony con-
viction as an adult. In addition to the information in the pre-
sentence report, the court asked Trice several questions about
his family relationships and his educational progress. When
announcing the sentence, the court emphasized the tragic
47
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013); State v. Dixon,
286 Neb. 334, 837 N.W.2d 496 (2013).
48
State v. Dixon, supra note 47; State v. Erickson, 281 Neb. 31, 793 N.W.2d
155 (2011).
49
State v. McGuire, supra note 47.
- 500 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. TRICE
Cite as 292 Neb. 482
nature of the crime, the senseless loss of life, Trice’s lack of
remorse, and his continued refusal to accept responsibility for
the crime.
We also note the State recommended that the sentence be
increased from what was imposed after the first trial, pointing
to evidence in the second trial that Trice had made “efforts
to thwart justice” and tried to “harm or get rid of” one of the
State’s eyewitnesses. The court rejected the State’s recommen-
dation and instead found no sufficient basis on which to either
increase or decrease the previously imposed sentence of 40
years to life in prison.
Contrary to Trice’s assertions on appeal, there is no evi-
dence that the district court failed to consider all of the rel-
evant factors in imposing sentence. After reviewing the record,
we find no abuse of discretion in the sentence imposed by
the trial court and conclude Trice’s assertions to the contrary
are meritless.
VI. CONCLUSION
Finding no reversible error in any of the assignments of
error on appeal, we affirm the judgment and sentence of the
trial court in all respects.
A ffirmed.
Heavican, C.J., not participating.