State v. Leibel

Nebraska Advance Sheets
STATE v. LEIBEL 725
Cite as 286 Neb. 725there was no material change in circumstances in that case.
Nonetheless, because I agree with the majority’s conclusion in
the case before us, I concur.
State of Nebraska, appellee, v.
Joshua D. Leibel, appellant.
___ N.W.2d ___
Filed October 25, 2013. No. S-12-1047.
1. Appeal and Error. An appellate court resolves questions of law and issues of
statutory interpretation independently of the lower court’s conclusion.
2. 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.
3. 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.
4. Judgments: Presumptions: Appeal and Error. A judgment of the district
court brought to an appellate court for review is supported by a presumption
of correctness.
5. Judgments: Appeal and Error. An appellant challenging a judgment of the dis-
trict court brought to an appellate court for review must both assign and specifi-
cally argue any alleged error.
6. Constitutional Law: Trial: 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 has been a prior
opportunity for cross-examination.
7. Public Officers and Employees: Motor Vehicles: Records: Intent. Although
the employees who create driving records may reasonably believe the records
will be available for some possible future prosecution, the sole purpose of creat-
ing driving records is not to create evidence for trials.
8. Records: Witnesses. Because neutral, bureaucratic information from routinely
maintained public records is not obtained by use of specialized methodol-
ogy, there is little, if any, practical benefit to applying the crucible of cross-­
examination against those who maintain the information.
9. Constitutional Law: Trial: Witnesses: Appeal and Error. The improper admis-
sion of statements in violation of the right to confrontation is a trial error subject
to harmless error review.
10. Constitutional Law: Trial: Proof: Appeal and Error. Where the trial error is
of a constitutional dimension, the burden must be on the beneficiary of the error
to prove beyond a reasonable doubt that the error did not contribute to the ver-
dict obtained.
Nebraska Advance Sheets
726 286 NEBRASKA REPORTS
11. Sentences. The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding the
defend­ant’s life.
Appeal from the District Court for Lancaster County: Karen
B. Flowers, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Scott
P. Helvie, and Ariel Johnson, Senior Certified Law Student,
for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
NATURE OF CASE
The sentencing order for the defendant’s prior conviction
of driving under the influence allowed him to drive with an
ignition interlock permit and device. The defendant failed
to obtain an ignition interlock permit or device, however,
before driving. He was convicted of the felony offense of
driving with a revoked license in violation of Neb. Rev. Stat.
§ 60-6,197.06(1) (Reissue 2010). The defendant argues that in
State v. Hernandez,1 we held that § 60-6,197.06(1) is ambigu-
ous and that ignition interlock device violations fall under a
different misdemeanor statute specific to such violations. The
defendant also asserts that his Department of Motor Vehicles
(DMV) record and accompanying documents, as well as state-
ments certifying their authenticity, were inadmissible hearsay
and violated his right to confrontation. Finally, he asserts that
his sentence was excessive. We affirm.
BACKGROUND
Joshua D. Leibel was charged under § 60-6,197.06 with
operating a motor vehicle while his operator’s license had
been revoked, a Class IV felony. Leibel had previously been
1
State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
Nebraska Advance Sheets
STATE v. LEIBEL 727
Cite as 286 Neb. 725sentenced to 5 years of license revocation for a conviction
of driving under the influence, third offense. The sentencing
order specified that Leibel would be permitted to drive after he
obtained an ignition interlock permit and equipped his vehicle
with an ignition interlock device.
At the bench trial for the charge of driving with a revoked
license, the State presented the testimony of a Lincoln police
officer. The officer testified that on October 3, 2011, he pulled
Leibel’s vehicle over after observing expired tags on the license
plates of the vehicle. The officer testified that during the stop,
Leibel told him that his driver’s license was suspended. The
officer did not observe an ignition interlock device on the
vehicle Leibel was driving.
The State also offered into evidence two exhibits. Exhibit 2
contained a certified copy of the 2011 sentencing order and
other documents relating to the 2011 conviction. Exhibit 2 was
admitted without objection.
Exhibit 1 contained the administrative order of revocation
of Leibel’s driver’s license by the DMV and related DMV
documents, as well as the “Complete Abstract of Record” for
Leibel with the DMV. There was no indication in the com-
plete DMV record that Leibel had been issued an ignition
interlock permit before October 3, 2011. The abstract instead
reflects that Leibel was issued an ignition interlock permit on
October 4.
Each page of the abstract and accompanying DMV docu-
ments contains either the seal of the DMV or a file stamp. The
abstract contains an apparent photocopy of a signed certifica-
tion by a custodian of the records division, Betty Johnson,
attesting it is a true and correct abstract of the operating
record. This certification page also contains the raised seal of
the DMV.
The DMV abstract and accompanying documents were pref-
aced by a letter written by the DMV program manager, Kathy
Hraban, certifying that the copies of the DMV record were true
and exact copies of the originals on file at the DMV. In the let-
ter, Hraban also states that on October 3, 2011, Leibel’s driving
privileges had not been reinstated and Leibel did not have an
ignition interlock permit.
Nebraska Advance Sheets
728 286 NEBRASKA REPORTS
Defense counsel objected to the entirety of exhibit 1 on foun-
dation, relevance, hearsay, and Confrontation Clause grounds.
The district court overruled Leibel’s objections and received
the exhibit.
After the close of the State’s case in chief, defense counsel
moved to dismiss the charges for failure to establish a prima
facie case. Defense counsel presented no evidence in Leibel’s
defense and, after resting, renewed his motion to dismiss.
Defense counsel argued that Leibel should have been charged
with misdemeanor ignition interlock permit violations and not
with the felony of driving with a revoked license.
The district court overruled Leibel’s motion to dismiss. The
court reasoned that Neb. Rev. Stat. § 60-6,211.05(5) (Reissue
2010) applied to persons who had obtained their ignition
interlock permit as allowed by the sentencing order, while
§ 60-6,197.06 applied to persons who had failed to obtain their
ignition interlock permit.
The district court found Leibel guilty of violating
§ 60-6,197.06(1). At the sentencing hearing, Leibel explained
that he had been relying on his girlfriend to drive him around,
but they broke up. He lives in a rural area and does not have
access to public transportation. Leibel stated he had finally
saved up the money to install an ignition interlock device and
was going to apply for a permit. But before getting the permit,
he was called into the probation office for a test. He made
the decision to drive to his probation visit. After the proba-
tion visit, Leibel went to work, made a telephone call while
at work to obtain the necessary car insurance, and went to get
the ignition interlock device installed. According to Leibel, the
person able to install the device was not available at that time
and Leibel was directed to come back the next day. On his way
home, Leibel was stopped by the police officer.
The court sentenced Leibel to 90 days’ jail time and a
15-year license revocation. The court reasoned that it was inap-
propriate to simply place Leibel on probation when the offense
was a probation violation. Leibel’s presentence investigation
report indicated multiple misdemeanor offenses and two prior
convictions of driving with a suspended license, in addition to
his prior convictions of driving under the influence. The court
Nebraska Advance Sheets
STATE v. LEIBEL 729
Cite as 286 Neb. 725stated it would allow Leibel the opportunity to drive with an
ignition interlock device and permit as soon as he was eligible
by statute; and the court deferred the 90-day jail sentence until
Leibel could request a work release. Leibel appeals the convic-
tion and sentence, which was deferred until the resolution of
this appeal.
ASSIGNMENTS OF ERROR
Leibel asserts that the district court erred in (1) admitting
exhibit 1, (2) failing to apply the reasoning of Hernandez, (3)
convicting him on insufficient evidence, and (4) imposing an
excessive sentence.
STANDARD OF REVIEW
[1] An appellate court resolves questions of law and issues
of statutory interpretation independently of the lower court’s
conclusion.2
[2] 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
reviews the underlying factual determinations for clear error.3
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.4
ANALYSIS
Hearsay and Confrontation
Leibel first asserts that the court erred in admitting exhibit
1 over his hearsay and Confrontation Clause objections. He
points out that without exhibit 1, there would be little evidence
he violated either the felony statute under which he was con-
victed or the misdemeanor statute he believes he should have
been charged with violating. Leibel’s principal argument is
that both the certificates of authenticity and the DMV records
to which the certificates pertained were testimonial in nature;
2
Fox v. Whitbeck, 280 Neb. 75, 783 N.W.2d 774 (2010).
3
State v. Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012).
4
State v. McGuire, ante p. 494, ___ N.W.2d ___ (2013).
Nebraska Advance Sheets
730 286 NEBRASKA REPORTS
therefore, their admission without the opportunity to cross-
examine violated his right to confrontation. Leibel alternatively
asserts that the State waived any argument on appeal that
exhibit 1 was admissible hearsay under the rules of evidence.
We address Leibel’s rules of evidence argument first.
The parties agree that exhibit 1 contains hearsay. The gen-
eral rule is that hearsay evidence is inadmissible unless it fits
within a recognized exception to the rule against hearsay.5
But besides a bare assertion that exhibit 1 was inadmissible,
Leibel fails to present any argument that the district court
was incorrect in its implicit determination that the state-
ments therein fit within a recognized exception to the rule
against hearsay. Instead, Leibel argues that because the State
failed to articulate at trial the specific hearsay exception
under which it claimed admissibility of the exhibit, the State
waived for purposes of this appeal any argument that exhibit 1
was admissible.
[4,5] Leibel misunderstands the respective responsibilities
of the parties on appellate review. A judgment of the dis-
trict court brought to our court for review is supported by a
presumption of correctness.6 An appellant challenging that
judgment must both assign and specifically argue any alleged
error.7 Thus, an appellant whose hearsay objection was over-
ruled by the trial court has the onus on appeal of showing that
such statements were in fact hearsay and that no exception to
or exclusion from the hearsay rule permitted its admission.8
Leibel has failed to sufficiently argue grounds for reversal of
the district court’s ruling on his hearsay objection. We turn to
his argument that the admission of exhibit 1 violated his con-
frontation rights.
[6] Where testimonial statements are at issue, the
Confrontation Clause demands that such out-of-court hear-
say statements be admitted at trial only if the declarant is
5
See Neb. Rev. Stat. §§ 27-802 and 27-803 (Reissue 2008).
6
See Flood v. Keller, 214 Neb. 797, 336 N.W.2d 549 (1983).
7
State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
8
See Menorah Medical Center v. Davis, 463 S.W.2d 618 (Mo. App. 1971).
Nebraska Advance Sheets
STATE v. LEIBEL 731
Cite as 286 Neb. 725unavailable and there has been a prior opportunity for cross-
examination.9 There is no argument that the declarants of the
hearsay statements contained in exhibit 1 were unavailable
and that Leibel had a prior opportunity to cross-examine them.
Whether Leibel’s right to confrontation was violated thus
depends entirely on whether the statements contained in the
DMV records and in the certifications of those records were
“testimonial.” This presents an issue of first impression for
our court.
To properly address this issue, a brief examination of the
U.S. Supreme Court decision Crawford v. Washington,10 and
its progeny, is necessary. In Crawford, the U.S. Supreme
Court held that, at a minimum, testimonial statements include
formal statements by an accuser to government officers.11
Thus, the wife’s recorded statement during a police inter-
rogation was subject to the Confrontation Clause. Later, in
Davis v. Washington,12 the Court similarly concluded that
statements made during a police interrogation of a victim
were “testimonial” if directed at establishing the facts of a
past crime and not directed at current circumstances requiring
police assistance.13
The Court explained in Crawford that the Confrontation
Clause was crafted in response to the practice in England of
reading in lieu of live testimony pretrial examinations of sus-
pects and witnesses, which had previously been conducted by
justices of the peace or other officials.14 The Court said that
the “Sixth Amendment must be interpreted with this focus
in mind.”15
9
See State v. Sorensen, supra note 3.
10
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177(2004).
11
See id.
12
Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224(2006).
13
See Michigan v. Bryant, ___ U.S. ___, 131 S. Ct. 1143, 179 L. Ed. 2d 93(2011).
14
Crawford v. Washington, supra note 10.
15
Id., 541 U.S. at 50.
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In Crawford, the Court overruled Ohio v. Roberts,16 which
for a quarter of a century had stood for the proposition that the
confrontation right does not bar admission of ex parte state-
ments bearing adequate “‘“indicia of reliability.”’”17 Thus,
falling under a firmly rooted hearsay exception or otherwise
bearing “‘particularized guarantees of trustworthiness,’” no
longer defined when an ex parte statement was admissible
without being subject to cross-examination.18 The Court said
in Crawford that the framers of the Constitution did not mean
“to leave the Sixth Amendment’s protection to the vagaries
of the rules of evidence, much less to amorphous notions
of ‘reliability.’”19
Subsequently, in Melendez-Diaz v. Massachusetts,20 a more
divided Court held that in a trial on charges of distribut-
ing cocaine, forensic analysis certifications that the substance
seized from the defendant was cocaine, were “testimonial.”
A plurality of the Court similarly held in Bullcoming v. New
Mexico,21 that ex parte statements certifying the results of
the gas chromatograph machine, and prepared for a trial on
charges for driving under the influence, were “testimonial.”
The Court in Bullcoming rejected the idea that the analyst
was not an “‘“accuser,”’”22 and thus did not fall under the
Sixth Amendment protection to be confronted with the “wit-
nesses against him.” The Court noted in Melendez-Diaz that
the analysts “prov[ed] one fact necessary for [the defend­
ant’s] conviction.”23
16
Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).
17
Michigan v. Bryant, supra note 13, 131 S. Ct. at 1152.
18
Crawford v. Washington, supra note 10, 541 U.S. at 60.
19
Id., 541 U.S. at 61.
20
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L.
Ed. 2d 314 (2009).
21
Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d
610 (2011).
22
Id., 131 S. Ct. at 2714.
23
Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 313. Accord
Bullcoming v. New Mexico, supra note 21.
Nebraska Advance Sheets
STATE v. LEIBEL 733
Cite as 286 Neb. 725In both Melendez-Diaz and Bullcoming, the Court took pains
to point out that the analysts were not “‘mere scrivener[s].’”24
The Court in Bullcoming noted that the analyst had also certi-
fied that he received the blood sample intact, had adhered to
a precise protocol in conducting the test, and had observed no
circumstance or condition affecting the integrity of the sample
or the validity of the analysis.25 The Court in Melendez-Diaz
explained at length how the scientific testing at issue in that
case was not “immune from the risk of manipulation.”26
In Melendez-Diaz, the Court explicitly endorsed the “‘[v]ari-
ous formulations’” of the “‘core class of testimonial state-
ments,’” which it had first noted in Crawford.27 That list
included “‘ex parte in-court testimony or its functional equiva-
lent,’” “‘similar pretrial statements that declarants would rea-
sonably expect to be used prosecutorially,’” and “‘statements
that were made under circumstances which would lead an
objective witness reasonably to believe that the statement[s]
would be available for use at a later trial.’”28 Specific examples
falling under these formulations included affidavits, deposi-
tions, prior testimony, confessions, custodial examination, and
other formalized testimonial materials.29
The Court said in Melendez-Diaz that “the paradigmatic
case identifies the core of the right to confrontation, not its
limits.”30 But, most recently, in Williams v. Illinois,31 the Court
said that “any further expansion [beyond the ‘modern-day
practices that are tantamount to the abuses that gave rise to
the recognition of the confrontation right’] would strain the
constitutional text.”
24
Bullcoming v. New Mexico, supra note 21, 131 S. Ct. at 2714.
25
Id.
26
Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 318.
27
Id., 557 U.S. at 310.
28
Id.
29
Id.
30
Id., 557 U.S. at 315.
31
Will. v. Illinois, ___ U.S. ___, 132 S. Ct. 2221, 2242, 183 L. Ed. 2d 89(2012).
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Apparently to limit such further expansion of Crawford,
several principles have “weaved in and out of the Crawford
jurisprudence.”32 The U.S. Supreme Court said in Davis
that “formality” is “essential to testimonial utterance.”33 In
Michigan v. Bryant,34 the Court noted that there can be “mixed
motives” for a statement and that the proper inquiry is whether
the declarant’s “primary purpose” is “testimonial.” The Court
in Bryant further said that “[i]n making the primary purpose
determination, standard rules of hearsay, designed to identify
some statements as reliable, will be relevant.”35
Finally, in Williams, the Court focused on whether the “pri-
mary purpose” of the out-of-court statement was to “accus[e]
a targeted individual” of engaging in criminal conduct.36 The
Court found that an analyst’s results from an independent
laboratory conducting DNA testing on samples taken from the
victim before any suspect was identified were not testimo­
nial.37 The Court explained that because there was no targeted
individual at the time of testing, there was “no ‘prospect of
fabrication’ and no incentive to produce anything other than
a scientifically sound and reliable profile.”38 Furthermore, in
contrast to the attestations that were found to be “testimonial”
in Melendez-Diaz and Bullcoming, the Court found it “signifi-
cant” that due to the way the work of a DNA laboratory was
divided up, “it is likely that the sole purpose of each technician
[was] simply to perform his or her task in accordance with
accepted procedures.”39
We have applied Crawford and its progeny to conclude
that calibration certifications of alcohol breath simulator
32
Bullcoming v. New Mexico, supra note 21, 131 S. Ct. at 2725 (Kennedy, J.,
dissenting; Bryer, C.J., and Alito, J., join).
33
Davis v. Washington, supra note 12, 547 U.S. at 830 n.5.
34
Michigan v. Bryant, supra note 13, 131 S. Ct. at 1161, 1155.
35
Id., 131 S. Ct. at 1155.
36
Will. v. Illinois, supra note 31, 132 S. Ct. at 2242.
37
Id.
38
Id., 132 S. Ct. at 2244.
39
Id.
Nebraska Advance Sheets
STATE v. LEIBEL 735
Cite as 286 Neb. 725­solutions40 and documents certifying the accuracy of tuning
forks for an officer’s radar unit,41 created in the course of
routine duties at a time when they did not pertain to any par-
ticular pending matter, were not testimonial. In contrast, we
have held that a certificate that a blood specimen was taken
in “a medically acceptable manner,” prepared at the request of
law enforcement in connection with the arrest of the defend­
ant, was testimonial.42 We have never addressed whether
public records or certifications of those public records that
are prepared for the purpose of a pending prosecution are
testimonial.
[7] We agree with numerous other courts that hold driving
records are not testimonial.43 In Melendez-Diaz, the Court said
that unless the regularly conducted activity of the business is
the production of evidence for use at trial, business records
are not testimonial.44 They are “created for the administration
of an entity’s affairs and not for the purpose of establishing or
proving some fact at trial.”45 Although the employees who cre-
ate driving records may reasonably believe the records will be
available for some possible future prosecution, the sole purpose
of creating driving records is not to create evidence for trials.46
The creation and maintenance of driving records is a ministe-
rial duty for the benefit of the public,47 utilized by drivers for
many purposes, including the procurement of insurance or of
40
State v. Britt, 283 Neb. 600, 813 N.W.2d 434 (2012); State v. Fischer, 272
Neb. 963, 726 N.W.2d 176 (2007).
41
State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).
42
State v. Sorensen, supra note 3, 283 Neb. at 937, 814 N.W.2d at 377.
43
See, e.g., State v. King, 213 Ariz. 632, 146 P.3d 1274 (Ariz. App. 2006);
Card v. State, 927 So. 2d 200 (Fla. App. 2006); State v. Shipley, 757
N.W.2d 228 (Iowa 2008); Com. v. McMullin, 76 Mass. App. 904, 923
N.E.2d 1062 (2010); State v. Vonderharr, 733 N.W.2d 847 (Minn. App.
2007); State v. Davis, 211 Or. App. 550, 156 P.3d 93 (2007).
44
Melendez-Diaz v. Massachusetts, supra note 20.
45
Id., 557 U.S. at 324.
46
See State v. Vonderharr, supra note 43.
47
See, e.g., Neb. Rev. Stat. § 60-483 (Reissue 2010). See, also, State v.
Vonderharr, supra note 43.
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commercial driving licenses.48 It is clear that driving records
do not fit within any of the U.S. Supreme Court’s articulations
of the “testimonial” test. Rather, they are prepared during rou-
tine duties at a time when they do not pertain to any particular
pending matter. DMV employees, in such circumstances, are
not “accusers” against a defendant.
Johnson’s signature certifying that the driving abstract rep-
resented a true and exact copy of Leibel’s operating record and
Hraban’s certification of authenticity of the abstract and its
accompanying DMV documents present a more complex ques-
tion. Johnson’s signature was required for the admissibility of
the driving abstract as a self-authenticating official record.49
Hraban’s signature was necessary for the admission of the
accompanying documents.50
Read expansively, Melendez-Diaz might be interpreted to
include sworn certificates that authenticate and summarize rou-
tine governmental records.51 After all, such certifications are
solemn statements “‘made under circumstances which would
lead an objective witness reasonably to believe that the state-
ment would be available for use at a later trial.’”52
Yet most courts have determined that such certifications are
not testimonial.53 Put most simply, if “‘the records themselves
do not fall within the constitutional guarantee provided by the
Confrontation Clause, it would be odd to hold that the founda-
tional evidence authenticating the records do[es].’”54
Interestingly, in Melendez-Diaz, the majority opinion com-
mented that the dissent had identified but “a single class of
48
See Neb. Rev. Stat. § 60-2907 (Reissue 2010).
49
See Neb. Rev. Stat. § 27-902 (Reissue 2008).
50
See id.
51
State v. Murphy, 991 A.2d 35 (Me. 2010).
52
Crawford v. Washington, supra note 10, 541 U.S. at 52.
53
See, U.S. v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007); State v. Bennett,
216 Ariz. 15, 162 P.3d 654 (Ariz. App. 2007); State v. Murphy, supra note
51; Com. v. McMullin, supra note 43; State v. Vonderharr, supra note 43;
Jasper v. Com., 49 Va. App. 749, 644 S.E.2d 406 (2007). But see Com. v.
Parenteau, 460 Mass. 1, 948 N.E.2d 883 (2011).
54
State v. Adefehinti, supra note 53, 510 F.3d at 328.
Nebraska Advance Sheets
STATE v. LEIBEL 737
Cite as 286 Neb. 725evidence which, though prepared for use at trial, was tra-
ditionally admissible: a clerk’s certificate authenticating an
official record—or a copy thereof—for use as evidence.”55
The Court did not explicitly hold that such certifications were
testimonial, but the Court distinguished traditional certifica-
tions from the analyst’s report the Court found testimonial in
that case. Unlike a clerk’s certificate authenticating an offi-
cial record, the Court explained, the analyst’s certificate was
created for “the sole purpose of providing evidence against
a defendant.”56
As the Court in Melendez-Diaz alluded to and other courts
have reasoned, certificates of authenticity are not really
offered to “prov[e] one fact necessary for [the defendant’s]
conviction.”57 They do not have the “primary purpose of accus-
ing a targeted individual,”58 in the sense that they do not,
in and of themselves, describe any criminal wrongdoing of
the defendant.59 The purpose of the certification is merely to
establish the authenticity of documents that were prepared in
a nonadversarial setting before the institution of the criminal
proceeding.60 It was the attached abstract and documents, not
the certifications, which proved Leibel was driving without an
ignition interlock permit.61
[8] Records custodians, in the capacity of authenticating
documents as true and exact copies of the records on file, are
more akin to the “scriveners,” and the process of certifying the
authenticity of a public record leaves little room for manipula-
tion or fabrication. “Because neutral, bureaucratic information
from routinely maintained public records is not obtained by
use of specialized methodology, there is little, if any, practical
benefit to applying the crucible of cross-examination against
55
Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 322.
56
Id., 557 U.S. at 323.
57
Id., 557 U.S. at 313.
58
Will. v. Illinois, supra note 31, 132 S. Ct. at 2225.
59
See Jasper v. Com., supra note 53.
60
See, State v. Shipley, supra note 43; Jasper v. Com., supra note 53.
61
See State v. Bennett, supra note 53.
Nebraska Advance Sheets
738 286 NEBRASKA REPORTS
those who maintain the information.”62 “[C]ross-examination
is a tool used to flesh out the truth, not an empty procedure.”63
We conclude that Hraban’s and Johnson’s statements authen-
ticating that the records contained in exhibit 1 were true and
exact copies, and were not “testimonial.”
Leibel points out, however, that Hraban’s certification went
beyond the traditional bounds of a records custodian when
she stated, “I further add that this person did not have a Work
or Ignition Interlock Permit on 10/03/2011.” The Court in
Melendez-Diaz, when discussing certifications of authentic-
ity, distinguished certifications by records custodians under
a “‘“narrowly circumscribed”’” authority to “‘certify to the
correctness of a copy of a record kept in his office’” from cir-
cumstances where a clerk attests, ex parte, that he or she had
“searched for a particular relevant record and failed to find
it.”64 The Court explained that, traditionally, a clerk certify-
ing a record had “‘no authority to furnish, as evidence for the
trial of a lawsuit, his interpretation of what the record contains
or shows, or to certify to its substance or effect.’”65 Later, in
Norwood v. United States,66 the Court vacated a Ninth Circuit
decision that deemed nontestimonial a clerk’s certification
of the absence of a fact relevant to the prosecution, upon a
diligent search of the department’s files. The U.S. Supreme
Court remanded the cause for further consideration in light
of Melendez-Diaz.
Hraban’s statement was an “‘interpretation of what the
record contains or shows.’”67 It was “testimonial” under the
stated dictum in Melendez-Diaz. Nevertheless, because of
the continuing evolution of Crawford, courts are divided on
whether this kind of rote summarization of an attached record
62
State v. Murphy, supra note 51, 991 A.2d at 43.
63
Crawford v. Washington, supra note 10, 541 U.S. at 74 (Rehnquist, C.J.,
concurring in the judgment; O’Connor, J., joins).
64
Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 322-23.
65
Id., 557 U.S. at 322.
66
Norwood v. United States, 558 U.S. 983, 130 S. Ct. 491, 175 L. Ed. 2d 339(2009) (granting petition for writ of certiorari).
67
Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 322.
Nebraska Advance Sheets
STATE v. LEIBEL 739
Cite as 286 Neb. 725is “testimonial.”68 We find the resolution of this particular point
unnecessary in this case. Even if Hraban’s statement was “testi-
monial,” it was plainly redundant to the information contained
in the abstract itself. And because this was a bench trial, there
was little risk that the finder of fact was unduly influenced
by this “official” summary of the record or was unable to
glean the relevant fact from the unsummarized DMV record.
Any possible violation of Leibel’s right to confrontation was
undoubtedly harmless.
[9,10] The improper admission of statements in violation
of the right to confrontation is a trial error subject to harm-
less error review.69 The U.S. Supreme Court in Chapman v.
California70 held that where the trial error is of a constitu-
tional dimension, the burden must be on the beneficiary of the
error to prove beyond a reasonable doubt that the error did
not contribute to the verdict obtained. This standard applies
equally to both jury and bench trials.71 We have sometimes
said that in a bench trial, it is the appellant’s burden to show
that the trial court made a finding of guilt based exclusively on
the erroneously admitted evidence; if there is other sufficient
evidence supporting the finding of guilt, the conviction will
not be reversed.72 But this rule of expediency has never been
68
See State v. Woodbury, 13 A.3d 1204 (Me. 2011). Compare Washington v.
State, 18 So. 3d 1221 (Fla. App. 2009).
69
See, Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d
674 (1986); State v. Sorensen, supra note 3; State v. Quintana, 261 Neb.
38, 621 N.W.2d 121 (2001).
70
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705(1967).
71
See, Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171(1963) (approved of in Chapman v. California, supra note 70); Robert E.
Larsen, Navigating the Federal Trial § 13:19 (2013). See, also, Hawkins
v. LeFevre, 758 F.2d 866 (2d Cir. 1985); Matter of Juvenile Action No.
97036-02, 164 Ariz. 306, 792 P.2d 769 (Ariz. App. 1990); Gipson v. State,
844 S.W.2d 738 (Tex. Crim. App. 1992); State v. Read, 147 Wash. 2d 238,
53 P.3d 26 (2002).
72
See, State v. Thompson, 278 Neb. 320, 770 N.W.2d 598 (2009); State v.
Craigie, 19 Neb. Ct. App. 790, 813 N.W.2d 521 (2012); State v. McCurry, 5
Neb. Ct. App. 526, 561 N.W.2d 244 (1997).
Nebraska Advance Sheets
740 286 NEBRASKA REPORTS
clearly applied to constitutional rights, and we will not apply
a presumption here that would shift the burden of proof to
the defendant.73
Nevertheless, whether the error is harmless in a particu-
lar case depends “upon a host of factors,”74 and we find the
fact of a bench trial a proper consideration in conducting
our Chapman harmless error review. Harmless error review
ultimately looks to the basis on which the trier of fact actu-
ally rested its verdict; the inquiry is not whether in a trial that
occurred without the error a guilty verdict would surely have
been rendered, but, rather, whether the actual guilty verdict
rendered in the questioned trial was surely unattributable to the
error.75 The admission of Hraban’s gratuitous statement sum-
marizing a fact clearly discernible by the district court from the
attached driving abstract surely did not contribute to the guilty
verdict in this case.
Finding no merit to Leibel’s assignments of error concerning
exhibit 1, we turn to Leibel’s assignments of error relating to
the statute under which he was charged.
73
See, State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991); State v.
Schroder, 232 Neb. 65, 439 N.W.2d 489 (1989). But see, e.g., State v.
Harms, 263 Neb. 814, 643 N.W.2d 359 (2002); State v. Lara, 258 Neb.
996, 607 N.W.2d 487 (2000). See, also, e.g., Note, Applicability of Rules
of Evidence Where the Judge Is the Trier of Facts in an Action at Law, 42
Harv. L. Rev. 258 (1928).
74
Delaware v. Van Arsdall, supra note 69, 475 U.S. at 684. See, also, e.g.,
U.S. v. Mohamed, No. 12-2835, 2013 WL 4259495 (8th Cir. Aug. 16,
2013); U.S. v. Rosalez, 711 F.3d 1194 (10th Cir. 2013), cert. denied No.
13-5782, 2013 WL 4199989 (U.S. Oct. 7, 2013); U.S. v. Cameron, 699
F.3d 621 (1st Cir. 2012), cert. denied ___ U.S. ___, 133 S. Ct. 1845,
185 L. Ed. 2d 850 (2013); State v. Mitchell, 296 Conn. 449, 996 A.2d
251 (2010); State v. Levell, 128 Haw. 34, 282 P.3d 576 (2012); People v.
Stechly, 225 Ill. 2d 246, 870 N.E.2d 333, 312 Ill. Dec. 268 (2007); State
v. Holman, 295 Kan. 116, 284 P.3d 251 (2012); State v. Wille, 559 So. 2d
1321 (La. 1990); Com. v. Vasquez, 456 Mass. 350, 923 N.E.2d 524 (2010);
State v. Pradubsri, 403 S.C. 270, 743 S.E.2d 98 (S. C. App. 2013); State
v. Tribble, 67 A.3d 210 (Vt. 2012); State v. Jasper, 174 Wash. 2d 96, 271
P.3d 876 (2012).
75
State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
Nebraska Advance Sheets
STATE v. LEIBEL 741
Cite as 286 Neb. 725§ 60-6,197.06(1)
Leibel asserts that § 60-6,197.06(1) was not the proper stat-
ute under which to charge him. A violation of § 60-6,197.06(1)
is a Class IV felony. Leibel argues that § 60-6,197.06(1)
clearly encompasses only those drivers who are operating a
vehicle during a time when they are ineligible by court order
to drive even with an ignition interlock device and permit.
Because he was eligible to drive with a device and permit,
Leibel claims the State should have instead charged him
with violating § 60-6,211.05(5). Section 60-6,211.05(5), since
repealed,76 set forth the misdemeanor offense of driving a
vehicle without an ignition interlock device “in violation of
the requirements of the court order.” The relevant language
of § 60-6,197.06(1) states: “Unless otherwise provided by law
pursuant to an ignition interlock permit, any person operating
a motor vehicle . . . while his or her operator’s license has
been revoked . . . shall be guilty of a Class IV felony.” Section
60-6,211.05(5) stated in full:
A person who tampers with or circumvents an ignition
interlock device installed under a court order while the
order is in effect, who operates a motor vehicle which is
not equipped with an ignition interlock device in viola-
tion of a court order made pursuant to this section, or
who otherwise operates a motor vehicle equipped with an
ignition interlock device in violation of the requirements
of the court order under which the device was installed
shall be guilty of a Class II misdemeanor.
In Hernandez,77 we considered whether a driver who had
a permit but then drove without the ignition interlock device
committed a felony under § 60-6,197.06(1). We said that the
introductory exclusionary clause of § 60-6,197.06(1) must
be read in pari materia with other applicable statutes specifi-
cally crafted for ignition interlock device violations, such as
§ 60-6,211.05(5). We concluded that a driver who operated a
vehicle with a permit but without an ignition interlock device
violated § 60-6,211.05(5), instead of § 60-6,197.06(1).
76
See 2011 Neb. Laws, L.B. 667, § 40.
77
State v. Hernandez, supra note 1.
Nebraska Advance Sheets
742 286 NEBRASKA REPORTS
We said that the introductory exclusionary clause of
§ 60-6,197.06(1) meant “‘unless a person has an [ignition]
interlock permit.’”78 “[O]ther statutes,” such as § 60-6,211.05(5)
“charge a person who violates the terms of his or her ignition
interlock permit.”79
The State argues that Leibel’s conduct is distinguishable
from the conduct of the defendant in Hernandez because Leibel
did not obtain a permit before driving without an ignition inter-
lock device. We agree. Section 60-6,197.06(1) states that “any
person operating a motor vehicle . . . while his or her operator’s
license has been revoked” is guilty of a Class IV felony under
that section “[u]nless otherwise provided by law pursuant to an
ignition interlock permit.” (Emphasis supplied.) For whatever
reason, the Legislature chose to draw the line at obtaining
a permit. While the exclusionary clause of § 60-6,197.06(1)
does not clearly encompass drivers (such as the defendant in
Hernandez) who obtain a permit but who then drive without
an ignition interlock device, we find no similar ambiguity
for drivers who neglect to obtain the permit. One cannot be
operating a vehicle “provided by law pursuant to an ignition
interlock permit,” if the driver does not have a permit.80 Leibel
did not have a permit, and thus, he did not fall under this
exception to the felony provisions of § 60-6,197.06(1). The
district court accordingly did not err in convicting Leibel of
violating § 60-6,197.06(1).
Excessive Sentence
[11] Lastly, Leibel asserts that the sentence of 90 days’
jail time was excessive. The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all the facts and circumstances surrounding the defend­
ant’s life.81 Given Leibel’s criminal record and the fact that,
78
Id. at 427, 809 N.W.2d at 283 (emphasis supplied).
79
Id. (emphasis supplied).
80
See § 60-6,197.06(1) (emphasis supplied).
81
State v. Hamilton, 277 Neb. 593, 763 N.W.2d 731 (2009).
Nebraska Advance Sheets
STATE v. LEIBEL 743
Cite as 286 Neb. 725as the district court noted, this was a probation violation, we
conclude that the district court did not abuse its discretion in
sentencing Leibel to 90 days in jail.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.