State v. Lindberg , 25 Neb. Ct. App. 515 ( 2018 )

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STATE v. LINDBERG
Cite as 25 Neb. App. 515State of Nebraska, appellee, v.
Justin Lindberg, appellant.
___ N.W.2d ___
Filed February 6, 2018. No. A-17-154.
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 infer-
ence 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 state-
ment, 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
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STATE v. LINDBERG
Cite as 25 Neb. App. 515statement 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 tem-
porarily 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 deter-
mination 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. M artin, Jr., Judge. Judgment of
District Court affirmed.
Robert W. Alexander, Deputy Hall County Public Defender,
for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for
appellee.
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STATE v. LINDBERG
Cite as 25 Neb. App. 515Pirtle, R iedmann, and A rterburn, Judges.
R iedmann, Judge.
INTRODUCTION
Following a bench trial, Justin Lindberg was found guilty
of domestic assault, third degree. The county court for Hall
County sentenced him to 183 days’ imprisonment. On appeal,
the district court affirmed the county court’s ruling. Lindberg
now appeals his conviction to this court. Following our review
of the record, we affirm.
BACKGROUND
In September 2015, the State of Nebraska filed a complaint
charging Lindberg with domestic assault, third degree, in vio-
lation of Neb. Rev. Stat. § 28-323(1)(a) or (b) (Reissue 2016),
a class I misdemeanor. The alleged victim was Lindberg’s
wife, M.L.
The county court held trial in February 2016. The State
subpoenaed M.L. to testify but did not call her as a witness.
The State’s sole witness at trial was Aaron Kleensang, a deputy
with the Hall County Sheriff’s Department. Kleensang testi-
fied that on the night of the incident, he was dispatched to an
apartment complex. Upon his arrival, he observed a male and
female, later identified as Lindberg and M.L., standing outside
in close proximity to one another. Kleensang stated that he
immediately made contact with the female and separated the
parties in order to check on her well-being. He testified that
M.L. was “visibly shaking and crying. She was very upset at
the time.” Kleensang also observed what appeared to be sev-
eral injuries to M.L.’s person. He initially spoke with M.L. out-
side the residence, and after he “started getting a better account
of events, she took [him] inside the residence and explained
further to greater detail of what had occurred.”
On direct examination, the State asked Kleensang what
M.L. informed him happened that evening. Lindberg objected
on hearsay and confrontation grounds, arguing that M.L. was
present in court and therefore not unavailable. The county
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Cite as 25 Neb. App. 515court overruled Lindberg’s objection, finding that her state-
ment to Kleensang was an excited utterance. Kleensang then
testified that M.L. reported that she had been in a fight with
her husband, Lindberg. Over Lindberg’s continuing objection
on confrontation grounds, Kleensang stated that M.L. advised
that an argument turned physical inside their residence. M.L.
said that Lindberg hit her across the left side of her face, which
resulted in injury and caused her to fall to the ground. M.L.
stated that once she was on the ground, Lindberg got on top
of her and “banged her head into the floor” approximately 15
times before she was able to get back on her feet. Kleensang
testified that the injuries he observed on M.L.’s person were
consistent with her description of the assault, including a red
mark on the left side of her face, an abrasion on her left hand,
and an abrasion on her knee. The court admitted photographs
of these injuries into evidence.
After the State rested, Lindberg called M.L. to testify on his
behalf. She was his only witness. She testified that she suffers
from vertigo, which was triggered on the night of the incident
by stress and an argument with Lindberg. M.L. testified that
her dizziness caused her to trip over a stool in their residence
and land on the left side of her face. She stated that she did
not tell Kleensang that Lindberg struck or threatened her and
that her injuries were sustained in the fall. M.L. admitted that
she was upset and crying when law enforcement arrived, but
testified that she was upset due to her injuries from tripping
over the stool and that “[n]othing happened” with Lindberg on
that night.
On rebuttal, the State recalled Kleensang, who testified that
M.L. did not report that she had tripped and fallen and that she
had told him that Lindberg struck her.
The county court found Lindberg guilty of domestic assault,
third degree, and sentenced him to 183 days’ imprisonment.
Lindberg appealed his conviction to the district court for
Hall County. He assigned as error the county court’s decision
to overrule his objection to Kleensang’s testimony as to M.L.’s
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Cite as 25 Neb. App. 515statements on confrontation grounds, the failure to find that
M.L. was unavailable as a witness, and the finding that M.L.’s
statements to Kleensang fell within the excited utterance hear-
say exception.
The district court held a hearing on Lindberg’s appeal in
January 2017. The court affirmed Lindberg’s conviction, find-
ing that M.L.’s statements qualified as excited utterances and
were properly admitted at trial. Lindberg now appeals.
ASSIGNMENTS OF ERROR
Lindberg assigns, restated and reordered, that the dis-
trict court erred in (1) finding that M.L.’s statements to law
enforcement constituted excited utterances and (2) finding that
Kleensang’s testimony as to M.L.’s statements did not violate
Lindberg’s Sixth Amendment right to confrontation.
STANDARD OF REVIEW
[1,2] We review for clear error the trial court’s factual find-
ings 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. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202(2011). We review de novo the court’s ultimate determination
to admit evidence over a hearsay objection or exclude evi-
dence on hearsay grounds. State v. Burries, 297 Neb. 367, 900
N.W.2d 483 (2017).
[3] An appellate court reviews de novo a trial court’s deter-
mination 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. State v.
Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
ANALYSIS
Excited Utterances.
Lindberg argues that the district court erred in finding
that M.L.’s statements to law enforcement constituted excited
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Cite as 25 Neb. App. 515utterances and were thus admissible as exceptions to the rule
prohibiting hearsay. He claims that the State did not lay suffi-
cient foundation for M.L.’s statements to be considered excited
utterances. Lindberg argues that M.L. admitted to being stressed
on the day of the incident but such stress was not caused by a
startling event. He further claims that her statements included
fabrications, which indicated that she had the time and capacity
to reflect and construct a response. We disagree.
[4] Before we turn to the merits of this assigned error, we
note that the State asserts that because Lindberg did not make
a continuing objection to Kleensang’s testimony on hearsay
grounds, he has only properly preserved his hearsay objection
to the first question during Kleensang’s testimony regard-
ing M.L.’s statements. However, Neb. Rev. Stat. § 25-1141(Reissue 2016) provides that 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.” Because Lindberg’s objection related
to testimony by only one witness, Kleensang, and Kleensang’s
testimony was of the same nature as the question to which
Lindberg did object, we find that Lindberg was not required to
make a continuing objection in order to preserve this issue for
appeal. See State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377(1998) (applying § 25-1141 to criminal prosecution).
[5] Neb. Rev. Stat. § 27-801(3) (Reissue 2016) defines hear-
say as a statement, other than one made by the declarant while
testifying at the trial or hearing, that is offered in evidence to
prove the truth of the matter asserted. Hearsay is not admis-
sible except as provided for by the rules of evidence or by
other rules adopted by the statutes of the State of Nebraska or
by the discovery rules of the Nebraska Supreme Court. State v.
Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
[6,7] A hearsay statement may be admissible if it quali-
fies as an excited utterance. Id. An excited utterance is a
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Cite as 25 Neb. App. 515“statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused
by the event or condition.” Neb. Rev. Stat. § 27-803(1)
(Reissue 2016). For a statement to qualify as an excited utter-
ance, 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 statement must have been made
by the declarant while under the stress of the event. State
v. Smith, supra. The key requirement is spontaneity, which
requires a showing that the statement was made without time
for conscious reflection. See id.
[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 pro-
duces utterances free of conscious fabrication. Id. The true test
in spontaneous exclamations is not when the exclamation was
made, but whether under all the circumstances of the particular
exclamation the speaker may be considered as speaking under
the stress of nervous excitement and shock produced by the act
in issue. Id. Statements need not be made contemporaneously
with the exciting cause but may be subsequent to it, provided
there has not been time for the exciting influence to lose its
sway and to be dissipated. State v. Hembertt, 269 Neb. 840,
696 N.W.2d 473 (2005).
At trial, Kleensang testified that he was dispatched to the
apartment complex at approximately 10:30 p.m. and that upon
his arrival, he saw Lindberg and M.L. standing in close prox-
imity outside the residence. He observed that M.L. was “visi-
bly shaking and crying.” He testified that during his interaction
with M.L., she was “very upset at the time.” Kleensang also
observed physical injuries to M.L.’s person. While there was
no exact timeframe established at trial, Kleensang testified that
upon his arrival, he “made immediate contact” with M.L. and
separated her from Lindberg.
Kleensang testified that M.L. told him that she had been
in a fight with Lindberg. He stated that M.L. reported that an
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STATE v. LINDBERG
Cite as 25 Neb. App. 515argument with Lindberg became physical inside their residence
and that Lindberg hit her across the left side of her face, caus-
ing injury. M.L. said that she fell to the ground when Lindberg
struck her in the face and that Lindberg then “repeatedly
banged her head into the floor.” Kleensang testified that he
observed redness on the left side of M.L.’s face, which was
consistent with her report that Lindberg hit her in that area.
Kleensang also observed an abrasion on M.L.’s left hand that
he opined may have been a defensive wound. Photographs of
both of these injuries, as well as an abrasion on M.L.’s knee,
were admitted at trial.
We find that the record before us establishes the exis-
tence of a startling event—Lindberg’s assault on M.L., which
included striking her in the face and repeatedly banging her
head into the floor. The occurrence of such an event was
corroborated by the physical injuries to M.L.’s person that
Kleensang observed.
M.L.’s statements to Kleensang clearly related to this event
as they described how the assault had occurred. We find that
M.L. was still under the stress of the nervous excitement
and shock of the assault when she made these statements.
Kleensang testified that he immediately made contact with
M.L. upon his arrival at the residence and that she was visibly
shaking and crying and was very upset during his interaction
with her. Her demeanor indicates that M.L. was still under the
stress of the startling event at the time that she spoke with
Kleensang. Accordingly, we find that the district court did
not err in finding that M.L.’s statements to Kleensang consti-
tuted excited utterances and were therefore admissible through
Kleensang’s testimony at trial. We therefore find no merit to
Lindberg’s first assignment of error.
Confrontation Clause.
Lindberg argues that M.L.’s statements to Kleensang were
testimonial and therefore subject to the Confrontation Clause.
He claims that M.L. was available to testify for the State
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Cite as 25 Neb. App. 515and that he had not previously had the opportunity to cross-­
examine her. Lindberg argues that the district court therefore
erred in finding that Kleensang’s testimony as to M.L.’s state-
ments did not violate his right to confrontation. We disagree.
[9] The Confrontation Clause of the Sixth Amendment to
the U.S. Constitution provides, in relevant part, “In all criminal
prosecutions, the accused shall enjoy the right . . . to be con-
fronted with the witnesses against him . . . .” Article I, § 11, of
the Nebraska Constitution provides, “In all criminal prosecu-
tions the accused shall have the right . . . to meet the witnesses
against him face to face . . . .” The Nebraska Supreme Court
has held that the analysis is the same under both the federal
and state constitutions. State v. Smith, 286 Neb. 856, 839
N.W.2d 333 (2013).
[10-12] 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.
State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004). If the
statements are nontestimonial, then no further Confrontation
Clause analysis is required. State v. Fischer, 272 Neb. 963,
726 N.W.2d 176 (2007). Accordingly, the initial step in deter-
mining whether there has been a Confrontation Clause viola-
tion usually involves a determination of whether the state-
ments at issue are testimonial in nature. See id. However, the
State does not argue that M.L.’s statements to Kleensang are
nontestimonial; rather, the State argues that even if the state-
ments are testimonial, Lindberg waived any objection he had
to such testimony on Confrontation Clause grounds by calling
M.L. to testify at trial. We agree.
[13] 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 jur[ors] in order that
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Cite as 25 Neb. App. 515they 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.’ . . .”
California v. Green, 399 U.S. 149, 157-58, 90 S. Ct. 1930, 26
L. Ed. 2d 489 (1970), quoting Mattox v. United States, 156
U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895). Indeed, the
U.S. Supreme Court has found that confrontation serves three
purposes: (1) it ensures that the witness will give his state-
ments under oath, thus impressing upon him the seriousness
of the matter and guarding against the lie by the possibility
of a penalty for perjury; (2) it forces the witness to submit to
cross-examination, the “‘greatest legal engine ever invented for
the discovery of truth’”; and (3) it permits the jury that is to
decide the defendant’s fate to observe the demeanor of the wit-
ness making his statement, which aids the jury in assessing his
credibility. California v. Green, 399 U.S. at 158.
[14] The U.S. Supreme Court has applied this logic to find
that 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. California v. Green, supra. By testifying at trial,
the three purposes of the Confrontation Clause are satisfied:
the declarant testifies under oath, which guards against untrue
statements; the declarant subjects himself or herself to cross-
examination regarding his or her statements; and the jury is
able to assess the demeanor of the declarant and determine
whether it finds him or her to be credible. Indeed, the Supreme
Court has held that “so long as the declarant is present at trial
to defend or explain” his or her statement, the Confrontation
Clause does not bar admission of such statement. Crawford
v. Washington, 541 U.S. 36, 59-60 n.9, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004). See, also, State v. Smith, 286 Neb.
856, 839 N.W.2d 333 (2013). While Crawford v. Washington,
supra, affected the application of the Confrontation Clause
to situations in which the declarant was unavailable at
trial, it did nothing to vitiate the principles established in
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Cite as 25 Neb. App. 515California v. Green, supra, concerning declarants who do
testify at trial. People v. Argomaniz-Ramirez, 102 P.3d 1015(Colo. 2004).
In this case, the record shows that the State did subpoena
M.L. to testify at trial but did not call her as a witness. However,
after the State rested, Lindberg called M.L. on his behalf, and
she subsequently testified as to the incident in question as
well as her statements to Kleensang. In her testimony, M.L.
recanted the statement she initially made to Kleensang and
said that her injuries were caused by tripping and falling over
a stool. M.L. specifically testified about the statements that she
made to Kleensang, claiming that she advised him that she had
tripped while feeling dizzy. She denied telling Kleensang that
Lindberg assaulted her.
By calling M.L. as a witness on his behalf, Lindberg had
the opportunity to examine her under oath and the jury was
able to assess her demeanor and credibility as a witness.
Furthermore, Lindberg specifically questioned M.L. about the
statement that Kleensang testified she had made to him on
the night of the incident. M.L. gave a different version of
events, in which she claimed that she did not tell Kleensang
that Lindberg had assaulted her. Presented with the testimony
of both Kleensang and M.L., the fact finder could then deter-
mine whose testimony it found to be credible. Based on M.L.’s
testimony as a witness, we find that Lindberg had a sufficient
opportunity to examine her regarding her statement as testified
to by Kleensang and that she was able to defend or explain
such statement.
We acknowledge that in cases of this nature, the declarant
who testifies at trial typically is called by the State. However,
the relevant case law does not differentiate between whether
the declarant testifies for the State or for the defendant; rather,
the case law simply focuses on the fact that the declarant does
testify at trial. See, California v. Green, 399 U.S. 149, 90 S.
Ct. 1930, 26 L. Ed. 2d 489 (1970); State v. Smith, supra; State
v. Holliday, 745 N.W.2d 556 (Minn. 2008). Here, it is clear
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Cite as 25 Neb. App. 515that M.L. was present and did testify at trial. Because M.L.
did testify at trial, we find no violation of the Confrontation
Clause in the county court’s admission of her statements
through Kleensang’s testimony regardless of whether such
statements were testimonial.
CONCLUSION
Following our review of the record, we find Lindberg’s
assignments of error to be without merit and therefore affirm.
A ffirmed.