State v. Ballew

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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. BALLEW
Cite as 291 Neb. 577
State of Nebraska, appellee, v.
Joshua D. Ballew, appellant.
___ N.W.2d ___
Filed August 14, 2015. No. S-13-1065.
1. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.
2. Double Jeopardy: Convictions: Appeal and Error. Whether two con-
victions result in multiple punishments for the same offense for double
jeopardy purposes presents a question of law, on which an appellate
court reaches a conclusion independent of the court below.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court will review for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and review de novo the court’s ultimate determination whether the
court admitted evidence over a hearsay objection or excluded evidence
on hearsay grounds.
5. Constitutional Law: Due Process: Witnesses: Appeal and Error. An
appellate court reviews de novo a trial court’s determination of the pro-
tections 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. The
determination of whether procedures afforded an individual comport
with constitutional requirements for procedural due process presents a
question of law.
6. Judgments: Appeal and Error. When issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent
conclusion irrespective of the decision of the court below.
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STATE v. BALLEW
Cite as 291 Neb. 577
7. Double Jeopardy. The Double Jeopardy Clauses of both the federal
and Nebraska Constitutions protect against three distinct abuses: (1) a
second prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple pun-
ishments for the same offense.
8. Double Jeopardy: Sentences: Proof. Under Blockburger v. United
States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), where the
same act or transaction constitutes a violation of two distinct statu-
tory provisions, the test to be applied to determine whether there are
two offenses or one is whether each provision requires proof of a fact
which the other does not. This test, otherwise known as the “same
elements” test, asks whether each offense contains an element not
contained in the other. If not, they are the same offense and double
jeopardy bars additional punishment and successive prosecution. If so,
they are not the same offense and double jeopardy is not a bar to addi-
tional punishment.
9. Criminal Law: Statutes: Double Jeopardy. In applying Blockburger
v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), to
separately codified criminal statutes which may be violated in alterna-
tive ways, only the elements charged in the case at hand should be
compared in determining whether the offenses under consideration are
separate or the same for purposes of double jeopardy.
10. Rules of Evidence: Impeachment: Prior Statements. Prior inconsist­
ent statements are admissible as impeachment evidence, but they are
not admissible as substantive evidence unless they are otherwise admis-
sible under the Nebraska Evidence Rules.
11. Trial: Testimony: Prior Statements: Appeal and Error. The trial court
has considerable discretion in determining whether testimony is incon-
sistent with prior statements, and absent an abuse of that discretion, the
trial court’s ruling will be upheld on appeal.
12. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, 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.
13. Criminal Law: Constitutional Law: Due Process: Rules of Evidence.
Whether rooted directly in the Due Process Clause of the 14th
Amendment or in the Compulsory Process or Confrontation Clauses
of the 6th Amendment, the federal Constitution guarantees criminal
defend­ ants a meaningful opportunity to present a complete defense.
However, the accused does not have an unfettered right to offer testi-
mony that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.
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291 Nebraska R eports
STATE v. BALLEW
Cite as 291 Neb. 577
14. Criminal Law: Constitutional Law: Trial: Witnesses. The right of a
person accused of a crime to confront the witnesses against him or her
is a fundamental right guaranteed by the 6th Amendment to the U.S.
Constitution, as incorporated in the 14th Amendment, as well as by
article I, § 11, of the Nebraska Constitution. But the right is not unlim-
ited, and only guarantees an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way and to whatever
extent the defense may wish.
15. Trial: Testimony. When the object of cross-examination is to collater-
ally ascertain the accuracy or credibility of the witness, the scope of the
inquiry is ordinarily subject to the discretion of the trial court.
16. Constitutional Law: Trial: Juries: Witnesses. An accused’s consti-
tutional right of confrontation is violated when either (1) he or she is
absolutely prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the part of
the witness or (2) a reasonable jury would have received a significantly
different impression of the witnesses’ credibility had counsel been per-
mitted to pursue his or her proposed line of cross-examination.
Appeal from the District Court for Lancaster County:
Stephanie F. Stacy, Judge. Affirmed.
Jessica L. Milburn for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Joshua D. Ballew appeals his convictions and sentences in
the district court for Lancaster County for two counts of first
degree assault, two counts of second degree assault, and two
counts of use of a deadly weapon to commit a felony. Ballew
claims that the district court erred when it overruled his motion
for a new trial, which motion was based on an alleged double
jeopardy violation and on allegedly erroneous evidentiary rul-
ings. We affirm Ballew’s convictions and sentences.
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STATE v. BALLEW
Cite as 291 Neb. 577
II. STATEMENT OF FACTS
Ballew attended a party at the house of Marshall Mock and
his roommates. The party began on the night of March 9, 2012,
and continued into the early morning hours of March 10. At
around 1:30 a.m., a fight broke out in the front yard of the
house. Among those who became involved in the fight were
Mock and a guest, Tyler Waddell. Both Waddell and Mock
were stabbed. Police responding to calls found Ballew in the
area near Mock’s house and took him into custody after noting
that he fit the description of the suspect and that his right hand
was bloody.
The State charged Ballew with two counts of first degree
assault in violation of Neb. Rev. Stat. § 28-308 (Cum. Supp.
2014), two counts of second degree assault in violation of
Neb. Rev. Stat. § 28-309 (Cum. Supp. 2014), and two counts
of use of a deadly weapon to commit a felony in violation of
Neb. Rev. Stat. § 28-1205(1) (Cum. Supp. 2014). Ballew was
charged with one count of each offense with respect to each of
the two victims—Waddell and Mock. The State also charged
Ballew with being a habitual criminal.
With respect to each charge of first degree assault, the State
alleged that Ballew had intentionally or knowingly caused
serious bodily injury to the victim, and with respect to each
charge of second degree assault, the State alleged that Ballew
had intentionally or knowingly caused bodily injury to the
victim with a dangerous instrument or that he had recklessly
caused serious bodily injury to the victim with a dangerous
instrument. At the close of evidence at trial, the court sustained
the State’s motion to amend the second degree assault charges
to conform to the evidence by removing the language alleging
that Ballew had recklessly caused serious bodily injury with
a dangerous instrument. Therefore, the second degree assault
charges were presented to the jury as alleging that Ballew had
intentionally or knowingly caused bodily injury to each victim
with a dangerous instrument.
The evidence the State presented at trial included testi-
mony by four witnesses who identified Ballew as the person
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STATE v. BALLEW
Cite as 291 Neb. 577
involved in the stabbings. These witnesses included the vic-
tims, Mock and Waddell, as well as Mikaela Perry and Blake
Klapperich.
Mock testified that during the party, he heard screaming
from outside and went to see what was happening. He saw
people on the porch screaming at two men on the sidewalk.
Mock identified Ballew as one of the men on the sidewalk,
and he testified that he had seen Ballew in the house earlier
that night. Mock went to the sidewalk to ask the men to leave.
As Mock was talking with Ballew and the other man, the
other man ran past Mock toward the house and grazed Mock’s
shoulder. As Mock turned to see what the other man was
doing, he felt himself being struck in the back. Mock testified
that when he was struck, he and Ballew were the only people
in the immediate area. Ballew left, and as Mock returned to
his house, he realized that he was bleeding and that he had
been stabbed.
Perry testified that she was at the party at Mock’s house and
that a fight broke out between some of her male friends and
another group of men. She stood on the porch and watched
the fighting until she saw Mock come up the stairs. She saw
that Mock was bleeding, and she went inside with him. Before
Mock came up the stairs, Perry saw him standing with one
man in front of him and one man behind. Perry identified
Ballew as the man who was standing behind Mock. She testi-
fied that there were no other individuals standing behind Mock
at that time and that she had seen Ballew at the party earlier
that night.
Waddell testified that he was at the party at Mock’s house.
At around 1 a.m., a female friend of Waddell’s came into
the house and said that two men outside were harassing her.
Waddell and some friends went outside and told the men to
leave. Waddell returned to the house. Five to ten minutes
later, Waddell heard someone say that there was a fight
going on outside. He went outside and saw that one man had
another in a headlock and was trying to pull him over a fence.
Waddell broke up the fight and turned to help the man who
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STATE v. BALLEW
Cite as 291 Neb. 577
had been in the headlock. As his back was turned toward the
fence, Waddell felt someone grab his shirt and pull him over
the fence. Waddell fell to his knees and looked up to see a
man who then grabbed Waddell’s shirt and threw him into the
side of a Jeep that was parked on the street. The man swung
at Waddell for 2 to 3 minutes, and Waddell felt “something
puncture” him, and remembered being hit in the head, ribs,
and back. Waddell heard someone yell “we need to get out of
here,” and the fighting stopped. Waddell realized he had been
stabbed, and he asked Klapperich to call the 911 emergency
dispatch service.
Waddell identified Ballew as the man who had thrown him
into the side of the Jeep and then swung at him. Waddell
testified that he had seen Ballew inside the house earlier that
night. Waddell stated that Ballew was wearing “baggy pants”
and “a baggier shirt” that night but that he did not remem-
ber the color of the shirt. He also testified that he remem-
bered Ballew as having “a lot of tattoos” on his face, neck,
and body.
On cross-examination, Ballew questioned Waddell regard-
ing the description of his assailant that he had given to an offi-
cer shortly after the stabbing. Waddell agreed that he had said
the man was wearing “a white tank top, men’s undershirt, and
gym shorts and dreadlocks.” Waddell testified that he had told
the officer that the assailant had tattoos. Ballew attempted to
refresh Waddell’s memory with a report written by the officer,
including the description Waddell had given of the assailant.
After reviewing the report, Ballew asked Waddell whether
the report stated that he had told the officer that the assail-
ant had tattoos. Waddell answered, “No.” The State objected
on the basis of improper impeachment; the State argued that
the report reflected only what the officer had written down
and not necessarily everything Waddell had told the officer.
The court sustained the State’s objection, but the court did not
strike any of Waddell’s testimony, and the State did not ask it
to do so. Ballew then stated that he had no further questions
for Waddell.
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STATE v. BALLEW
Cite as 291 Neb. 577
Klapperich testified that he went with Waddell to the party
at Mock’s house. Around 1 a.m., Klapperich heard that Waddell
was involved in an altercation outside. He went outside, where
he saw a confrontation between Waddell and two other men.
Klapperich identified Ballew as one of the men in the con-
frontation with Waddell. Klapperich convinced Waddell to
come back inside. Soon after they got inside, Klapperich heard
people yelling that there was a fight outside. Klapperich and
Waddell ran back outside, and Klapperich saw Waddell pull
two men apart, one of whom had been choking the other.
Klapperich testified that a “giant fight” then erupted involving
several people. Klapperich saw Ballew slam Waddell’s head
into the side of a Jeep. The fight continued, and Klapperich
saw Ballew “swinging [at Waddell] with an object in hand.”
Klapperich testified that Ballew’s motions were not punches
but were instead “a swinging across action. Like there was an
object in hand, such as a knife.” Klapperich assisted Waddell
after the fight was over. Klapperich could tell that Waddell had
been cut, and when he pulled up Waddell’s shirt, he saw a gash
in his ribs. Klapperich helped Waddell inside and called for
emergency assistance.
Mock and Waddell were taken to a hospital. A trauma
surgeon who treated them testified that Mock had sustained
stab wounds to the back and that Waddell had sustained stab
wounds to the back, chest, head, and leg.
In Ballew’s defense, he recalled police officers who had
testified in the State’s case and who had investigated the stab-
bings. Officer Paul Luce had interviewed Waddell shortly
after the stabbing. When Ballew asked Luce, “And what did
[Waddell] tell you?” the State objected based on hearsay.
Ballew argued to the court that Luce’s testimony was being
offered in order to impeach Waddell’s testimony regarding
the description of his assailant. The court sustained the State’s
objection, stating that the question asked for hearsay and that
none of the hearsay exceptions applied. Ballew then asked
Luce whether Waddell had mentioned that the assailant had
tattoos. Luce said he did not recall, and Ballew attempted to
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STATE v. BALLEW
Cite as 291 Neb. 577
refresh Luce’s memory with his report. After Luce’s memory
had been refreshed, Ballew asked, “Did . . . Waddell mention
anything to you about tattoos in regard to the description?” The
State objected based on hearsay, and the court sustained the
objection. Ballew then stated that he had no further questions
for Luce.
Ballew also recalled Officer Patrick Tucker, who had
interviewed several witnesses, including Klapperich, shortly
after the stabbings. Ballew began to question Tucker about
a photographic lineup he had shown Klapperich. The State
objected on the basis that Tucker’s testimony as to any
identification Klapperich made would be hearsay. Ballew
responded that the testimony would be used to impeach
Klapperich’s identification of Ballew. The court sustained the
State’s objection. Ballew then stated that he had no further
questions for Tucker.
After the jury found Ballew guilty on all six counts, Ballew
filed a motion for a new trial. Ballew asserted that convictions
for both first degree assault and second degree assault with
respect to each victim would result in multiple punishments for
the same offense in violation of the Double Jeopardy Clauses
of the state and federal Constitutions. Regarding the presenta-
tion of evidence, Ballew claimed that he was denied his rights
to a complete defense and to confront witnesses. Ballew also
asserted that the court prejudicially erred in its evidentiary rul-
ings when it prohibited him from questioning Luce and Tucker
about statements made by Waddell and Klapperich that were
inconsistent with their testimony at trial.
The court overruled Ballew’s motion for a new trial. As to
procedure, the court sustained the State’s objections to evi-
dence that Ballew offered at the hearing on the motion. As to
the merits of the motion, the court stated that under Nebraska
law, first degree assault and second degree assault are two sep-
arate and distinct offenses for double jeopardy purposes. The
court also stated that the evidentiary rulings were not erroneous
and that even if they were, any error in excluding the evidence
did not materially affect Ballew’s substantial rights.
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STATE v. BALLEW
Cite as 291 Neb. 577
The court found Ballew to be a habitual criminal. The court
sentenced Ballew to imprisonment for 10 to 22 years for each
of the six convictions. The court ordered that the sentences
for first degree assault and second degree assault with respect
to Mock be served concurrently to one another and that the
sentences for first degree assault and second degree assault
with respect to Waddell be served concurrently to one another
but consecutively to the sentences for assaults with respect to
Mock. The court ordered that each of the sentences for use
of a deadly weapon be served consecutively to all other sen-
tences imposed.
Ballew appeals his convictions and sentences.
III. ASSIGNMENTS OF ERROR
Ballew claims that the district court erred when it overruled
his motion for a new trial in which he asserted that (1) his
right against double jeopardy was violated when he was con-
victed of both first degree assault and second degree assault
with respect to each victim and (2) the court’s evidentiary rul-
ings violated his right to present a complete defense and his
right to confront the witnesses against him. Regarding the evi-
dentiary rulings, Ballew also separately claims that the court
prejudicially erred when it (a) sustained the State’s objection
to his questioning Waddell regarding Waddell’s description
of his assailant shortly after the stabbing, (b) sustained the
State’s objection to his questioning Luce regarding Waddell’s
description of his assailant shortly after the stabbing, and (c)
sustained the State’s objection to his questioning of Tucker
regarding an identification made by Klapperich from a photo-
graphic lineup.
We note that Ballew also argues that the court erred when
it sustained the State’s objections to evidence he offered at the
hearing on the motion for a new trial. However, Ballew made
no assignment of error with regard to such ruling. In order
to be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the
brief of the party asserting the error. State v. Smith, 286 Neb.
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856, 839 N.W.2d 333 (2013). Accordingly, we do not address
this argument.
IV. STANDARDS OF REVIEW
[1] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not
be disturbed. State v. Ramirez, 287 Neb. 356, 842 N.W.2d
694 (2014).
[2] Whether two convictions result in multiple punishments
for the same offense for double jeopardy purposes presents a
question of law, on which an appellate court reaches a conclu-
sion independent of the court below. See State v. Huff, 282
Neb. 78, 802 N.W.2d 77 (2011).
[3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved
only when the rules make discretion a factor in determining
admissibility. State v. DeJong, 287 Neb. 864, 845 N.W.2d
858 (2014).
[4] Apart from rulings under the residual hearsay excep-
tion, we will review for clear error the factual findings under-
pinning a trial court’s hearsay ruling and review de novo
the court’s ultimate determination whether the court admitted
evidence over a hearsay objection or excluded evidence on
hearsay grounds. State v. Taylor, 287 Neb. 386, 842 N.W.2d
771 (2014).
[5,6] 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. State v.
Patton, 287 Neb. 899, 845 N.W.2d 572 (2014). The determi-
nation of whether procedures afforded an individual comport
with constitutional requirements for procedural due process
presents a question of law. Id. When issues on appeal present
questions of law, an appellate court has an obligation to reach
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an independent conclusion irrespective of the decision of the
court below. Id.
V. ANALYSIS
In this appeal, Ballew claims that the district court erred
when it made certain evidentiary rulings and when it over-
ruled his motion for a new trial. With regard to the motion
for a new trial, the district court rejected two arguments that
Ballew also makes on appeal: (1) that his convictions and sen-
tences for both first degree assault and second degree assault
with respect to each victim violated his right against double
jeopardy and (2) that the court’s evidentiary rulings were erro-
neous, violated his right to present a complete defense, and
violated his right to confront witnesses against him. We first
consider Ballew’s double jeopardy argument in the context of
the motion for a new trial. We then consider the district court’s
evidentiary rulings, both with respect to Ballew’s argument
that the rulings were erroneous and with respect to his argu-
ment that such rulings violated his constitutional rights and
required a new trial.
1. The District Court Did Not A buse Its Discretion
When It Denied Ballew’s Motion for a
New Trial Based on an A lleged
Double Jeopardy Violation
Ballew first argues that he should have been granted a
new trial because it was a double jeopardy violation for him
to be convicted and sentenced for both first degree assault
and second degree assault as to each victim based on the
same set of facts. We conclude that such convictions and
sentences did not violate double jeopardy and that therefore,
the district court did not abuse its discretion when it rejected
Ballew’s double jeopardy arguments and denied a new trial
on such basis.
[7,8] The Double Jeopardy Clauses of both the federal and
Nebraska Constitutions protect against three distinct abuses:
(1) a second prosecution for the same offense after acquittal,
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(2) a second prosecution for the same offense after convic-
tion, and (3) multiple punishments for the same offense. State
v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). At issue in this
case is whether convictions for both first degree assault and
second degree assault as to a particular victim arising from
the same incident result in multiple punishments for the same
offense. Under Blockburger v. United States, 284 U.S. 299, 52
S. Ct. 180, 76 L. Ed. 306 (1932), where the same act or trans-
action constitutes a violation of two distinct statutory provi-
sions, the test to be applied to determine whether there are
two offenses or one is whether each provision requires proof
of a fact which the other does not. Huff, supra. This test, oth-
erwise known as the “same elements” test, asks whether each
offense contains an element not contained in the other. If not,
they are the same offense and double jeopardy bars additional
punishment and successive prosecution. If so, they are not the
same offense and double jeopardy is not a bar to additional
punishment. See id.
The district court cited two cases in which this court con-
sidered the relationship between the crime of first degree
assault under § 28-308 and the crime of second degree assault
under § 28-309. In State v. Billups, 209 Neb. 737, 311 N.W.2d
512 (1981), this court concluded that second degree assault
was not a lesser-included offense of first degree assault and
that instead, the two were distinct offenses. In State v. Van,
268 Neb. 814, 688 N.W.2d 600 (2004), this court concluded
that it was not an abuse of discretion to impose consecu-
tive sentences for convictions for first degree assault, second
degree assault, and other offenses when the convictions arose
from the same transaction. Neither Billups nor Van directly
addressed the question presented here—whether convictions
and sentences for first degree assault and second degree
assault related to the same victim arising from the same inci-
dent result in multiple punishments for the same offense for
double jeopardy purposes. We apply the Blockburger test and
conclude as a matter of law that there is no double jeopardy
violation where, as here, a defendant is charged and convicted
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of first degree assault under § 28-308 and second degree
assault under § 28-309(1)(a).
[9] Section 28-308 provides that one commits first degree
assault when one “intentionally or knowingly causes seri-
ous bodily injury to another person.” Section 28-309(1) pro-
vides that one may commit second degree assault in one of
three alternative ways: One commits second degree assault (a)
when one “[i]ntentionally or knowingly causes bodily injury
to another person with a dangerous instrument”; (b) when one
“[r]ecklessly causes serious bodily injury to another person
with a dangerous instrument”; or (c) when one “[u]nlawfully
strikes or wounds another (i) while legally confined in a jail or
an adult correctional or penal institution, (ii) while otherwise
in legal custody of the Department of Correctional Services,
or (iii) while committed as a dangerous sex offender under
the Sex Offender Commitment Act.” We have stated that “in
applying Blockburger to separately codified criminal statutes
which may be violated in alternative ways, only the elements
charged in the case at hand should be compared in determining
whether the offenses under consideration are separate or the
same for purposes of double jeopardy.” State v. Winkler, 266
Neb. 155, 163, 663 N.W.2d 102, 108 (2003).
Ballew was charged throughout this case with first degree
assault under § 28-308 and second degree assault under
§ 28-309, but the theory under § 28-309 evolved during
the proceedings. The original information charged two counts
of second degree assault, one as to each victim, using all
three alternative ways of committing the offense described in
§ 28-309. At the beginning of the trial, the court allowed the
State to amend the information to delete allegations based on
subparagraph (1)(c) of § 28-309, and at the end of the trial
and prior to instructing the jury, the court allowed the State to
amend the information to delete allegations based on subpara-
graph (1)(b) of § 28-309 in order to conform to the evidence.
Therefore, the second degree assault charges in this case were
based solely on subparagraph (1)(a), which provides that one
commits second degree assault when one “[i]ntentionally or
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knowingly causes bodily injury to another person with a dan-
gerous instrument.”
Applying the Blockburger test, we note that both § 28-308
and § 28-309(1)(a) require proof that the person intention-
ally or knowingly caused bodily injury to another person.
However, § 28-308, pertaining to first degree assault, requires
proof that the accused caused “serious” bodily injury, whereas
§ 28-309(1)(a), pertaining to second degree assault, does not
require that the injury be “serious.” Furthermore, § 28-309(1)(a)
requires proof that the accused caused bodily injury “with a
dangerous instrument,” whereas § 28-308 does not require
the use of a “dangerous instrument.” In sum, § 28-308 and
§ 28-309(1)(a) each require proof of a fact which the other
does not require, and therefore under the Blockburger test, they
are not the same offense and double jeopardy is not a bar to
punishment for both offenses.
The dissent contends that the Blockburger test does not
apply in this case because the Legislature has expressed an
intent for first degree assault and second degree assault to
be a single offense. We agree that the Blockburger test does
not apply when there is clear legislative intent regarding
whether conduct involves a single offense or multiple offenses.
See State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
However, Ballew directs us to nothing in the statutes that
indicates such intent, and the statute referred to by the dissent
does not show a clear indication of legislative intent that first
degree assault under § 28-308 and second degree assault under
§ 28-309(1)(a) constitute a single offense.
The Blockburger test is “an aid to statutory interpretation”
to determine the Legislature’s intent and “not a constitutional
demand.” See State v. Huff, 282 Neb. 78, 103, 802 N.W.2d
77, 98 (2011). The Blockburger test “should not be controlling
where . . . there is a clear indication of . . . legislative intent.”
Albernaz v. United States, 450 U.S. 333, 340, 101 S. Ct. 1137,
67 L. Ed. 2d 275 (1981).
The U.S. Supreme Court has noted that “[t]he assump-
tion underlying the [Blockburger] rule is that [a legislature]
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ordinarily does not intend to punish the same offense under
two different statutes.” Whalen v. United States, 445 U.S.
684, 691-92, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980). With
regard to the present case, the offenses of first degree assault
and second degree assault are defined in two different statutes,
§§ 28-308 and 28-309(1)(a), a fact “which, by itself is some
indication of legislative intent to authorize multiple prosecu-
tions simply because the offenses are separately defined in
different statutes.” See Vick v. State, 991 S.W.2d 830, 832
(Tex. Crim. App. 1999). The assumption that two statutes
define two separate offenses may be overcome by a clear
indication of legislative intent that the statutes constitute a
single offense.
We have recognized that offenses defined in different stat-
utes may constitute a single offense if the Legislature has
clearly shown its intent that the crimes described are a sin-
gle offense, making a Blockburger analysis unnecessary. See
Miner, supra. In Miner, we held that theft offenses defined
in separate statutes, Neb. Rev. Stat. §§ 28-511 and 28-517
(Reissue 2008), constituted a single offense, because Neb. Rev.
Stat. § 28-510 (Reissue 2008) specifically provides: “Conduct
denominated theft in sections 28-509 to 28-518 constitutes
a single offense . . . .” In Miner, we stated that we were not
employing the Blockburger test “[b]ecause the Legislature has
unambiguously defined theft as a single offense which can be
committed in several different ways.” 273 Neb. at 846, 733
N.W.2d at 899-900 (emphasis supplied). The Legislature’s
unambiguous statement in § 28-510 that the statutes defining
different varieties of theft constituted a single offense was a
clear indication of legislative intent, which made use of the
Blockburger test unnecessary.
In the present case, there is no similar statute stating that
different assault statutes constitute a single offense, and the
statute relied on by the dissent does not show clear legisla-
tive intent to such effect. The dissent relies on Neb. Rev.
Stat. § 29-2025 (Reissue 2008), which states in relevant part,
“Upon an indictment for an offense consisting of different
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degrees the jury may find the defendant not guilty of the
degree charged, and guilty of any degree inferior thereto
. . . .” Although we need not determine the precise mean-
ing of § 29-2025 in this case, we read it as addressing the
issue of whether a defendant may be convicted of a lesser
offense when a greater offense was charged in the informa-
tion. Regardless of the contours of § 29-2025, contrary to the
interpretation by the dissent, we do not read this statute as
showing a clear indication of legislative intent that the crimes
found in §§ 28-308 and 28-309(1)(a) define a single offense
merely because one offense is denominated as “assault in the
first degree” while the other is denominated as “assault in the
second degree.”
Therefore, in the absence of clear legislative intent, we
analyze the charges in this case, which charges are based
on separate statutes, under the Blockburger “same elements”
test. Such analysis leads us to conclude that the first degree
assault and second degree assault charges upon which this
case was tried do not constitute a single offense and that
double jeopardy does not bar multiple punishments. Because
double jeopardy was not a bar to punishment for both first
degree assault under § 28-308 and second degree assault under
§ 28-309(1)(a) with respect to each victim, we conclude that
the district court did not abuse its discretion when it rejected
Ballew’s double jeopardy argument in support of his motion
for a new trial.
2. The District Court Did Not Err in Its
Evidentiary Rulings, Nor Did It A buse
Its Discretion When It Denied a New
Trial Based on Such Rulings
Ballew also argues that he should have been granted a
new trial, because his right to present a complete defense and
his right to confront witnesses were violated when the dis-
trict court’s evidentiary rulings prevented him from presenting
evidence to impeach testimony by Waddell and Klapperich
identifying him as the assailant. In addition to claiming that
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the evidentiary rulings required a new trial, Ballew separately
claims that the rulings were prejudicially erroneous in and of
themselves. We first review each evidentiary ruling in light of
Ballew’s argument that the ruling was erroneous, and we then
review his argument that the rulings violated his constitutional
rights and required that he be granted a new trial.
(a) The District Court Did Not Err
When It Sustained the State’s
Impeachment Objection to Ballew’s
Cross-Examination of Waddell
Ballew first claims that the district court erred when it
sustained the State’s impeachment objection to his cross-­
examination of Waddell. We find no error.
Waddell was a witness for the State. He identified Ballew
as the person who had assaulted him. On cross-examination,
Ballew questioned Waddell regarding the description of his
assailant that he had given to an officer shortly after the stab-
bing. After Waddell testified that he had told the officer that
the assailant had tattoos, Ballew attempted to refresh Waddell’s
memory with a report written by the officer. Waddell reviewed
the report, and Ballew then asked Waddell whether he saw
anywhere in the report that he had told the officer that the
assailant had tattoos. Waddell answered, “No.” At that point,
the State objected on the basis of improper impeachment and
the court sustained the objection. The court did not strike
any of Waddell’s testimony, and the State did not ask it to
do so. Ballew then stated that he had no further questions
for Waddell.
Ballew argues that his use of the police report was an appro-
priate method to refresh Waddell’s memory and that it was
appropriate for him to impeach Waddell’s testimony by show-
ing that shortly after the incident, Waddell gave a description
of the assailant that was inconsistent with the description he
gave at trial.
We first note that it is unclear what evidence Ballew
was prevented from presenting to the jury when the court
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sustained the State’s objection based on improper impeach-
ment but did not strike any testimony. Ballew was not pre-
vented from using the police report to refresh Waddell’s
memory, and before the State objected, Waddell had already
testified that the report did not include a statement that the
assailant had tattoos. After it sustained the State’s objection,
the court did not strike the testimony and the State did not
ask it to do so. Ballew stated that he had no further questions
for Waddell.
Given the record just noted, we will nevertheless consider
Ballew’s argument that the court erred when it sustained the
State’s objection based on improper impeachment to his ques-
tion to Waddell regarding the contents of the police report. We
find no abuse of discretion in the district court’s ruling.
[10,11] Prior inconsistent statements are admissible as
impeachment evidence, but they are not admissible as substan-
tive evidence unless they are otherwise admissible under the
Nebraska Evidence Rules. See, State v. Rodriguez, 272 Neb.
930, 726 N.W.2d 157 (2007); State v. Williams, 224 Neb. 114,
396 N.W.2d 114 (1986). See, also, Neb. Rev. Stat. §§ 27-613
and 27-801 (Reissue 2008). The trial court has considerable
discretion in determining whether testimony is in fact incon­
sistent with prior statements. See State v. Burton, 282 Neb.
135, 802 N.W.2d 127 (2011), citing State v. Marco, 220 Neb.
96, 368 N.W.2d 470 (1985). We have said that absent an abuse
of that discretion, the trial court’s ruling will be upheld on
appeal. First Nat. Bank in Mitchell v. Kurtz, 232 Neb. 254, 440
N.W.2d 432 (1989).
Ballew contends that Waddell’s trial testimony describing
his assailant was inconsistent with the statement attributed to
Waddell in the officer’s report. Ballew asserts this inconsist­
ency goes to Waddell’s credibility. Ballew asserts that his line
of questioning was permissible as showing a prior inconsistent
statement, and he does not claim that the proposed testimony
was otherwise admissible.
Fundamental to Ballew’s argument is his assertion that the
statements are inconsistent. However, as the district court
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necessarily found, Waddell’s alleged failure to tell a police
officer shortly after the incident that the assailant had tattoos
is not inherently inconsistent with his later testimony that the
assailant had tattoos. If Waddell had explicitly told the police
officer that the assailant did not have tattoos, then the state-
ments would have been inconsistent. But the fact that the
police report does not include a descriptive detail that Waddell
included in his trial testimony does not establish that Waddell
made a prior inconsistent statement. Therefore, to the extent
the district court sustained the State’s improper impeachment
objection because it determined that Ballew had not shown
that Waddell’s trial testimony was inconsistent with a prior
statement, we find no abuse of discretion.
We determine that the district court did not abuse its discre-
tion when it sustained the State’s objection based on improper
impeachment. We therefore reject Ballew’s claim that the evi-
dentiary ruling was erroneous.
(b) The District Court Did Not Err When
It Sustained the State’s Objection to
Ballew’s Questioning of Luce
Ballew next claims that the district court erred when it sus-
tained the State’s hearsay objection to his questioning of Luce
regarding Waddell’s earlier description of his assailant. We find
no error.
Ballew called Luce as a witness in his defense. Ballew asked
Luce, “And what did [Waddell] tell you?” to which the State
objected. Ballew explained to the court that Luce’s testimony
regarding what Waddell had previously said was being offered
in order to impeach Waddell’s trial testimony regarding the
description of his assailant. Ballew essentially contends that
Waddell’s description of the assailant before trial was incon­
sistent with Waddell’s testimony at trial.
The court sustained the State’s objection and stated that
the question asked for hearsay and that none of the hear-
say exceptions applied. Ballew then asked Luce whether
Waddell had mentioned that the assailant had tattoos. Luce
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said he did not recall, and Ballew attempted to refresh Luce’s
memory with his report. After Luce’s memory had been
refreshed, Ballew asked, “Did . . . Waddell mention anything
to you about tattoos in regard to the description?” The State
objected based on hearsay, and the court sustained the objec-
tion. Ballew then stated that he had no further questions
for Luce.
Ballew argues on appeal that Luce’s testimony regarding
Waddell’s earlier description of his assailant was admissible as
a prior inconsistent statement used to impeach Waddell’s trial
testimony describing the assailant. Ballew contends that the
description Waddell gave to Luce roughly at the time of the
incident differed from the description Waddell gave in his trial
testimony. Ballew asserts that at trial, Waddell described his
assailant as wearing baggy clothes and having a lot of tattoos,
but shortly after the incident, Waddell told Luce that the assail-
ant was wearing a tank top and gym shorts and Waddell did not
mention to Luce that the assailant had tattoos.
[12] Hearsay is a statement, 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. § 27-801(3).
Ballew contends that the proposed testimony by Luce regard-
ing Waddell’s description of the assailant shortly after the
incident was not hearsay, because it was not being offered
to prove the truth of the description but instead to impeach
Waddell by showing that Waddell has made inconsistent state-
ments regarding the description of the assailant. Ballew makes
no alternative argument that proposed testimony is otherwise
admissible, such as a hearsay statement made admissible pur-
suant to a hearsay exception.
By determining that the proposed testimony was hear-
say, and given the context of the ruling, the district court
inherently rejected Ballew’s explanation for admissibility
and determined that the proposed testimony was not proper
impeachment evidence. Thus, we analyze the ruling accord-
ing to impeachment jurisprudence and apply the standards
recited in the prior section relating to impeachment and prior
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inconsistent statements. Although our reasoning differs some-
what from the district court, we conclude that the district
court did not abuse its discretion when it limited Ballew’s
questioning of Luce.
Ballew asserted that Waddell’s description shortly after the
incident was inconsistent with his description at trial with
respect to whether the assailant had tattoos and the nature of
the clothing the assailant was wearing. With regard to Ballew’s
questioning Luce about whether Waddell said the assailant
had tattoos, as we observed above with regard to the State’s
objection during Waddell’s testimony, the alleged failure to
previously state that the assailant had tattoos was not inher-
ently inconsistent with testimony at trial that the assailant
had tattoos. As we determined with respect to the objection
to Ballew’s questioning of Waddell, we conclude that the dis-
trict court did not abuse its discretion when it determined that
Ballew’s questioning of Luce about whether Waddell said that
the assailant had tattoos would not show a prior inconsistent
statement by Waddell and that therefore, the line of inquiry
was not suitable for application of prior inconsistent state-
ment impeachment.
With regard to Ballew’s questioning Luce about the descrip-
tion Waddell gave of the assailant’s clothing, we note that
Ballew had earlier questioned Waddell on the same matter.
Waddell testified at trial that the assailant was wearing “baggy
clothes,” including “baggy pants and kind of like a baggier
shirt.” During Ballew’s cross-examination of Waddell, Ballew
asked Waddell whether Waddell had given an officer a descrip-
tion of the assailant as wearing a tank top and gym shorts.
Waddell answered, “Yes,” but he also stated, “I saw gym shorts
underneath, yes.”
We conclude that the district court did not abuse its discre-
tion when it rejected Ballew’s argument in support of admis-
sibility and determined that Waddell’s statement to Luce
regarding the assailant’s clothing was not a proper subject
for impeachment by use of a prior inconsistent statement.
Waddell’s statement during cross-examination indicated that
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at least the gym shorts could have been worn underneath a
baggier shirt and pants. And the description of the assailant’s
clothes in the report prepared by Luce was brief and did not
appear to be intended as a detailed description. Given that at
the time it made its ruling on the State’s objection, the court
knew both the contents of the police report and Waddell’s
testimony, it was not an abuse of discretion for the court to
determine that the descriptions were not inconsistent and
that therefore, impeachment was not warranted. We further
note that because Waddell had already testified regarding
the description he had given police of the assailant’s cloth-
ing shortly after the incident, questioning Luce to elicit the
same testimony would have been cumulative of testimony
Ballew had already adduced during his cross-examination
of Waddell.
We reject Ballew’s claim that the district court erred when
it sustained the State’s objection during Luce’s testimony in
Ballew’s defense.
(c) The District Court Did Not Err When It
Sustained the State’s Objection to Ballew’s
Questioning of Tucker Regarding an Alleged
Identification Made by Klapperich
Ballew finally claims that the district court erred when
it sustained the State’s hearsay objection to his questioning
Tucker regarding an alleged identification made by Klapperich
from a photographic lineup. We find no error.
During his cross-examination of Klapperich in the State’s
case, Ballew asked Klapperich whether he remembered
Tucker’s showing him “some pictures”; Klapperich replied,
“Yes.” Ballew then asked Klapperich whether he picked out the
assailant, and Klapperich replied, “I don’t remember.” Ballew
did not question Klapperich further on the matter.
Ballew called Tucker as a witness in his defense. Ballew
asked Tucker whether he had shown Klapperich a photo-
graphic lineup, and Tucker replied, “I did.” Ballew then
asked Tucker whether he recalled how many photographs he
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had shown Klapperich. Before Tucker could reply, the State
requested a sidebar. The State told the court it anticipated that
Ballew would ask Tucker whether Klapperich identified some-
one from the photographic lineup; the State objected on the
basis that Tucker’s testifying to any identification Klapperich
made would be hearsay. Ballew argued that the testimony
would not be hearsay, because it would not be used to prove
the truth of the matter asserted but instead would be “offered
to show that the person made a mistake in the identification.”
The court sustained the State’s objection. Ballew then stated
that he had no further questions for Tucker.
Ballew argues that he should have been allowed to question
Tucker further about an identification Klapperich allegedly
made from the photographic lineup, because such previous
identification would be inconsistent with Klapperich’s identi-
fication at trial of Ballew as the assailant and would impeach
Klapperich’s trial testimony. However, after the State made
its objection, Ballew made no offer of proof to show that
Tucker would testify that Klapperich identified someone other
than Ballew.
We note that at the hearing on the motion for a new trial,
Ballew offered exhibits in support of his motion and the court
sustained the State’s objections to the exhibits. On appeal,
Ballew refers us to one such exhibit, exhibit 74, which is a
report written by Tucker, as support for his argument that
when shown the photographic lineup, Klapperich identified a
person other than Ballew—“a person depicted in photo 5”—
as the assailant. Brief for appellant at 21. Even if exhibit 74
had been received, it does not support Ballew’s contention.
Contrary to Ballew’s characterization of the lineup “identi-
fication,” id. at 20, exhibit 74 indicates that Tucker showed
Klapperich five photographs of persons who were not Ballew
and that Klapperich indicated only that the person shown in
photograph 5 more closely resembled the assailant than did
the others. The report states that after viewing photograph
5, Klapperich said, “‘Looks [m]ore like him, kind of looks
like the guy out here.’” The report does not indicate that
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Klapperich actually identified the person depicted in photo-
graph 5 as the assailant, and therefore, the earlier lineup “iden-
tification” is not inconsistent with Klapperich’s trial identifi-
cation of Ballew as the assailant.
Klapperich’s prior lineup identification could not be fairly
characterized as an inconsistent statement, and we therefore
determine that the district court did not abuse its discre-
tion when it rejected Ballew’s argument that his question-
ing of Tucker would produce nonhearsay evidence of a prior
incon­sistent statement with which it would be appropriate to
impeach Klapperich. We therefore conclude that the court did
not err when it limited the questioning of Tucker.
(d) The District Court Did Not Abuse Its
Discretion When It Denied Ballew’s
Motion for a New Trial Based on
Constitutional Violations Resulting
From Evidentiary Rulings
In addition to claiming the evidentiary rulings were erro-
neous, Ballew also argues that a new trial should have been
granted, because the rulings deprived him of his right to pre­
sent a complete defense and his right to confront witnesses.
We conclude that the district court did not abuse its discretion
when it denied a new trial on such bases.
[13] We have stated that whether rooted directly in the Due
Process Clause of the 14th Amendment or in the Compulsory
Process or Confrontation Clauses of the 6th Amendment, the
federal Constitution guarantees criminal defendants a mean-
ingful opportunity to present a complete defense. State v.
Phillips, 286 Neb. 974, 840 N.W.2d 500 (2013), cert. denied
___ U.S. ___, 134 S. Ct. 1899, 188 L. Ed. 2d 930 (2014).
See, also, Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142,
90 L. Ed. 2d 636 (1986). However, “‘[t]he accused does not
have an unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of
evidence.’” Phillips, 286 Neb. at 996, 840 N.W.2d at 519,
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quoting Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L.
Ed. 2d 798 (1988).
[14-16] The right of a person accused of a crime to con-
front the witnesses against him or her is a fundamental right
guaranteed by the 6th Amendment to the U.S. Constitution,
as incorporated in the 14th Amendment, as well as by arti-
cle I, § 11, of the Nebraska Constitution. State v. Patton,
287 Neb. 899, 845 N.W.2d 572 (2014). But the right is not
unlimited, and only guarantees an opportunity for effective
cross-­examination, not cross-examination that is effective in
whatever way and to whatever extent the defense may wish.
Id. When the object of the cross-examination is to collaterally
ascertain the accuracy or credibility of the witness, the scope
of the inquiry is ordinarily subject to the discretion of the trial
court. Id. An accused’s constitutional right of confrontation
is violated when either (1) he or she is absolutely prohibited
from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of
the witness or (2) a reasonable jury would have received a
significantly different impression of the witnesses’ credibility
had counsel been permitted to pursue his or her proposed line
of cross-examination. Id.
Ballew argues that the court’s evidentiary rulings prevented
him from presenting a complete defense and from confront-
ing witnesses. As discussed above, we find no error in the
district court’s evidentiary rulings and, therefore, the evidence
Ballew sought to admit was inadmissible under standard rules
of evidence. Furthermore, Ballew was allowed to present a
meaningful defense and he was allowed to cross-examine the
witnesses who identified him as the assailant. With regard to
Waddell, despite the court’s rulings, Waddell’s testimony was
not stricken, and Ballew was able to cross-examine Waddell
regarding the description of the assailant in the police report
attributed to Waddell and the alleged inconsistencies with his
description at trial. Ballew was also able to cross-examine
Klapperich, and Ballew’s contentions do not demonstrate that
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Klapperich made any prior inconsistent statement about which
Ballew was prevented from questioning Klapperich.
Because we find no violation of Ballew’s rights to pre­sent
a complete defense and to confront the witnesses against
him, we conclude that the district court did not abuse its
discretion when it denied Ballew’s motion for a new trial on
such bases.
VI. CONCLUSION
We conclude that Ballew’s convictions and sentences for
both first degree assault and second degree assault with respect
to each victim did not violate his rights against double jeop-
ardy. We also conclude that the district court’s evidentiary
rulings were not erroneous and that such rulings did not vio-
late Ballew’s right of confrontation or his right to present a
complete defense. We finally conclude that the district court
did not abuse its discretion when it denied Ballew’s motion
for a new trial, and we therefore affirm Ballew’s convictions
and sentences.
A ffirmed.
Stephan, J., not participating in the decision.
Connolly, J., dissenting.
I dissent from the majority opinion for two reasons. I believe
that double jeopardy barred Ballew’s two convictions for sec-
ond degree assault. I also conclude that the trial court erred in
excluding prior inconsistent statements.
I believe the opinion’s double jeopardy analysis over-
looks a statute that governs Ballew’s convictions for two
different degrees of assault arising from the same act. I
conclude that Neb. Rev. Stat. § 29-2025 (Reissue 2008)
requires the vacation of Ballew’s two convictions for sec-
ond degree assault. Regarding the evidentiary rulings, the
district court unmistakably excluded Ballew’s impeachment
evidence as hearsay or improper impeachment because an
officer might have failed to record a more consistent state-
ment. The court never considered whether the witnesses’
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prior ­inconsistent ­statements were inconsistent enough to be
admitted to impeach their credibility.
So I disagree with the majority’s conclusions that the court
implicitly determined that the witnesses’ prior inconsistent
statements were inadmissible for this nonhearsay purpose. I
believe that the majority opinion erroneously concludes that
for a witness’ prior statement to be inconsistent, it must be dia-
metrically opposed to the witness’ trial testimony. I conclude
that the district court erred in excluding proper impeachment
evidence and that the error was not harmless when the wit-
nesses’ credibility was crucial to the State’s convictions.
COURT’S SENTENCING VIOLATES
DOUBLE JEOPARDY
The record shows that the jury found Ballew guilty of first
degree and second degree assault for a single act of attacking
Mock with a knife. And it found Ballew guilty of first degree
and second degree assault for a single act of attacking Waddell
with a knife. The majority concludes that Ballew’s convictions
of first and second degree assault for the same conduct do not
violate the double jeopardy prohibition of multiple punish-
ments for the same offense. It concludes that the convictions
are not for the same offense under the “same elements” test
that we have adopted from Blockburger v. United States.1 It
acknowledges that we have not previously decided this issue
in the two Nebraska cases dealing with different degrees of
assault convictions: State v. Billups2 and State v. Van.3 But it
summarily concludes that the Blockburger test is appropri-
ate here. I disagree. Blockburger does not apply when the
Legislature has expressed a contrary intent.
1
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306
(1932).
2
State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981).
3
State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004).
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As relevant here, the Double Jeopardy Clause protects
individuals from multiple punishments for the same offense.4
“With respect to cumulative sentences imposed in a single trial,
the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the
legislature intended.”5
Under the Blockburger test, “‘where the same act or trans-
action constitutes a violation of two distinct statutory provi-
sions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires
proof of an additional fact which the other does not.’”6 “But
the question whether punishments imposed by a court after
a defendant’s conviction upon criminal charges are unconsti-
tutionally multiple cannot be resolved without determining
what punishments the Legislative Branch has authorized.”7
The “Blockburger test is a ‘rule of statutory construction,’ and
because it serves as a means of discerning [legislative] purpose
the rule should not be controlling where, for example, there is
a clear indication of contrary legislative intent.”8
For federal courts, if Congress has demonstrated an intent
to permit cumulative punishments, the Double Jeopardy
Clause is not violated if the trial court imposes the cumula-
tive punishments in a single trial.9 But the Double Jeopardy
Clause “at the very least precludes federal courts from impos-
ing consecutive sentences unless authorized by Congress to
4
State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
5
Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535
(1983).
6
Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187
(1977), quoting Blockburger, supra note 1.
7
Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432, 63 L. Ed. 2d
715 (1980).
8
Albernaz v. United States, 450 U.S. 333, 340, 101 S. Ct. 1137, 67 L. Ed.
2d 275 (1981). See Huff, supra note 4.
9
State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (2009), citing Hunter,
supra note 5.
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do so.”10 This rule stems from the framework of the fed-
eral Constitution that reserves the power to define criminal
offenses and to prescribe their punishments to Congress.11
So if “a federal court exceeds its own authority by imposing
multiple punishments not authorized by Congress, it violates
not only the specific guarantee against double jeopardy,
but also the constitutional principle of separation of pow-
ers in a manner that trenches particularly harshly on indi-
vidual liberty.”12
This court has recognized these same principles. Within
constitutional boundaries, it is the Legislature’s function to
define crimes and punishments.13 Nebraska’s separation of
powers clause prohibits the three governmental branches from
exercising the duties and prerogatives of another branch.14
Thus, a court may not impose harsher punishments than the
Legislature has validly authorized.15
These holdings compel the conclusion that a court violates
Nebraska’s double jeopardy clause by imposing cumulative
punishments if the Legislature has not authorized it. We have
long held that the protection provided by Nebraska’s double
jeopardy clause16 is coextensive with that provided by the
U.S. Constitution.17
I conclude that under these principles, it is irrelevant that
a Blockburger analysis would not preclude punishing Ballew
for first degree and second degree assault. Under § 29-2025,
10
Whalen, supra note 7, 445 U.S. at 689.
11
See id.
12
Id.
13
See, e.g., State v. Armagost, ante p. 117, 864 N.W.2d 417 (2015); In
re Petition of Nebraska Community Corr. Council, 274 Neb. 225, 738
N.W.2d 850 (2007).
14
In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
15
See, e.g., State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010); State v.
Rouse, 206 Neb. 371, 293 N.W.2d 83 (1980).
16
See Neb. Const. art. I, § 12.
17
See, e.g., Dragoo, supra note 9.
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the Legislature did not intend to permit courts to impose
cumulative punishments for different degrees of criminal
assault arising from a single act.
Section 29-2025, in relevant part, contemplates choos-
ing between a conviction for a charged offense or a lesser
degree offense: “Upon an indictment for an offense consist-
ing of different degrees the jury may find the defendant not
guilty of the degree charged, and guilty of any degree inferior
thereto . . . .” The plain language of § 29-2025 shows that
the Legislature intended a fact finder to convict a defendant
of a lesser degree offense for the same act only if it finds
the defendant not guilty of the greater degree offense. The
statute does not permit the fact finder to convict the defend­
ant of both the higher and lesser degree offenses for the
same conduct.
It is true that in State v. Billups, we held that second
degree assault is not a lesser-included offense of first degree
assault.18 But the opinion does not show that the court con-
sidered the application of § 29-2025. More important, Billups
does not control whether second degree assault is a lesser
degree offense of first degree assault when the Legislature
has determined that it is. Notably, in Billups, we also held
that no evidence supported a claim that the victim was not
seriously injured or that the defendant had not acted intention-
ally. So the defendant could not have shown prejudice from
not receiving an instruction on second degree assault under
those facts.19
Nor does our decision in State v. Van apply here.20 As the
majority opinion states, in Van, we affirmed the defendant’s
consecutive sentences for first degree assault, second degree
assault, and other offenses. But those offenses did not arise
from a single transaction, as the defendant argued on appeal.
18
Billups, supra note 2.
19
See State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
20
Van, supra note 3.
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The opinion shows that the assaults took place over several
days with distinct breaks between them.21 In affirming the
defendant’s sentences, we did not even address his argument
that his offenses arose from the same transaction.
In sum, I agree with the majority that we have never
addressed whether the State can convict a defendant of first
and second degree assault when the offenses arose out of the
exact same conduct. And I agree that, generally, if a legisla-
ture sets out separate offenses in separate and distinct statutes
and cumulative punishments are permitted under Blockburger,
then multiple punishments for those offenses are not a double
jeopardy violation.22 But we have previously recognized that
a double jeopardy violation occurs even if the defendant was
convicted for separate offenses under the Blockburger test if
the Legislature has provided that a person shall not be con-
victed of two offenses arising from the same act.23 And I simi-
larly believe that we cannot apply Blockburger to circumvent
the Legislature’s intent in § 29-2025.
It seems to me that the majority fails to distinguish between
lesser degrees of the same offense and lesser-included
offenses. Under § 25-2025, the relevant question is whether
the Legislature has authorized punishing a defendant for both
first degree and second degree assault for the same act. It
has not. It is true that § 29-2025 authorizes a conviction for
an uncharged lesser degree of the charged offense. But the
majority ignores the language in this sentence that requires
an acquittal of the higher degree: “[T]he jury may find the
defend­ant not guilty of the degree charged, and guilty of any
degree inferior thereto.” (Emphases supplied.) Normally, we
try to avoid interpreting a statute in a manner that renders part
of its words meaningless.24
21
See State v. Kleckner, ante p. 539, ___ N.W.2d ___ (2015).
22
See Whalen, supra note 7.
23
See State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
24
See, e.g., State v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011).
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I concede that the statute has been applied to instructions
for uncharged lesser-included offenses.25 But it is specifically
directed at a conviction for a lesser degree of the same offense.
It applies when the defendant allegedly committed only one
offense—in this case, a single assault against each victim. That
is why in states that have a statute like § 29-2025, due process
does not preclude a conviction for an uncharged lesser degree
of the same offense.26
So permitting a conviction for a lesser degree of the charged
offense and putting a defendant on notice that such a con-
viction is possible are obvious purposes of § 29-2025. But
the majority can’t have it both ways. Due process permits a
conviction for an uncharged lesser degree because it is same
offense under § 29-2025. So it cannot become a separate
offense if the State seeks to convict the defendant of both the
greater and lesser degrees. Notably, the majority cites no case
in which an appellate court has upheld convictions of two
separate degrees of the same crime for the same act.
Finally, even if the meaning of § 29-2025 were unclear,
the rule of lenity should preclude interpreting it to permit two
different assault convictions for the same assault. We strictly
construe penal statutes and will not apply a penal statute to
situations or parties not fairly or clearly within its provisions.27
Ambiguities in a penal statute are resolved in the defendant’s
favor.28 I do not believe § 29-2025 is ambiguous. It is a clear
indication of the Legislature’s intent that a jury can convict a
defendant of a lesser degree of the charged offense only if it
acquits the defendant of the greater degree.29 But even if the
Legislature’s intent is not clear enough for the majority, our
25
See, e.g., Moore v. State, 147 Neb. 390, 23 N.W.2d 552 (1946).
26
See, Salinas v. United States, 277 F.2d 914 (9th Cir. 1960); State v. Foster,
91 Wash. 2d 466, 589 P.2d 789 (1979).
27
State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014), cert. denied ___
U.S. ___, 135 S. Ct. 1505, 191 L. Ed. 2d 442 (2015).
28
Id.
29
See State v. Corey, 181 Wash. App. 272, 325 P.3d 250 (2014).
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rules of statutory construction should require the majority to
interpret § 29-2025 in Ballew’s favor.
I would hold that the court’s convictions of first and second
degree assault ran afoul of the constitutional double jeopardy
guarantee. The jury obviously found the defendant guilty of
both counts of first degree assault. But under § 29-2025, it
could not simultaneously find him guilty of two counts of
second degree assault for the same acts. I believe those convic-
tions should be vacated.
COURT ERRED IN EXCLUDING PROPER
IMPEACHMENT EVIDENCE
Ballew Properly Attempted to Impeach
Waddell’s Testimony by Showing His
Omission of M aterial Facts in a
Prior Inconsistent Statement
The majority concludes that the court did not err in exclud-
ing evidence of Waddell’s prior inconsistent statement because
the court “necessarily found” that Waddell’s previous descrip-
tion of his assailant to Luce was “not inherently inconsistent
with his later testimony that the assailant had tattoos.”
But the record shows that the court never considered whether
Waddell’s prior statement was sufficiently inconsistent with
his trial testimony. So the majority’s conclusion that the prior
statement was not inconsistent enough is not a theory of exclu-
sion that Ballew had a fair opportunity to argue against at
trial.30 More important, I believe the majority’s standard of dia-
metrically opposed prior statements is incorrect.
As the majority opinion states, during the State’s direct
examination of Waddell, he stated that he remembered Ballew
had “a lot of tattoos” on his face and neck and “spread out
on his body.” On cross-examination, Waddell stated that he
had told Luce that his assailant was a black male with tat-
toos. Ballew’s attorney then showed Waddell an unidentified
30
Compare State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
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writing to refresh his memory and asked if the writing showed
that he had described his assailant as having tattoos. When
Waddell said “No,” the prosecutor immediately objected.
In a sidebar conference, the parties stipulated that Ballew
had asked Waddell to review Luce’s report of Waddell’s
statements, and the court admitted the report for ruling on
the objection. The prosecutor argued that the report con-
tained only Luce’s statement of what he remembered of
Waddell’s statements and that impeachment was improper
because Luce might have omitted something Waddell had
told him. Ballew’s attorney argued that (1) Luce’s report was
the best evidence of what Waddell had told Luce, (2) it was
proper impeachment to show that Luce had not recorded what
Waddell claimed to have reported to him, and (3) the State
could recall Luce if necessary. The court sustained the objec-
tion as improper impeachment.
Nothing in the sidebar conference shows that the court con-
sidered whether Waddell’s prior statements to Luce were incon-
sistent enough with his testimony for the court to admit them
as prior inconsistent statements. Instead, the court accepted the
State’s argument that impeaching Waddell with Luce’s report
was improper because Luce might not have recorded a con­
sistent statement. That reasoning was incorrect.
A witness’ prior inconsistent statements are admissible as
impeachment evidence.31 This rule includes a witness’ fail-
ure to mention a fact of consequence under circumstances in
which it would have been natural to assert it. Such an omission
amounts to an assertion of the nonexistence of the fact.32 And
we have specifically held that a trial court errs in excluding
this type of impeachment evidence.33
31
State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
32
See, Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d
86 (1980); 3A John Henry Wigmore, Evidence in Trials at Common Law
§ 1042 (James H. Chadbourn rev. ed. 1970).
33
Rodriguez, supra note 31.
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Witnesses in criminal trials are frequently impeached with
their statements to police officers after a crime.34 This is also
true when the witness testifies to a fact of consequence at trial
but failed to disclose this fact to the officer.35 It seems to me
that if evidence of a witness’ prior inconsistent statement were
inadmissible because a police report, a document, or a differ-
ent witness’ memory might be incomplete, then most prior
inconsistent statements that were not made under oath would
be inadmissible to impeach a witness. Because this is clearly
not the law, I would reverse the court’s ruling that Ballew’s
attempted impeachment of Waddell was error because the offi-
cer might have omitted a critical fact. No evidence called into
question the reliability of Luce’s report.
Prior Inconsistent Statements Need
Not Be Diametrically Opposed to
a Witness’ Trial Testimony
Even if—as the majority concludes—the trial court had actu-
ally ruled that Waddell’s prior statement should be excluded
as improper impeachment because it was not inconsistent
with his trial testimony, I would reverse. We have explicitly
stated that an “inconsistency is not limited to diametrically
opposed answers but may also be found in evasive answers,
34
See, e.g., State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015); State
v. Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015); State v. Marco, 220
Neb. 96, 368 N.W.2d 470 (1985), disapproved in part on other grounds,
Dominguez, supra, and Stevens, supra; 21 Am. Jur. Proof of Facts 2d 101
Impeachment of Witness—Prior Inconsistent Statements § 16 (1980 &
Supp. 2014).
35
See, e.g., Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed.
2d 222 (1980); State v. Luther, 152 Conn. App. 682, 99 A.3d 1242 (2014);
People v. Toney, 337 Ill. App. 3d 122, 785 N.E.2d 138, 271 Ill. Dec. 487
(2003); Com. v. Ragan, 538 Pa. 2, 645 A.2d 811 (1994); People v. Bock,
242 Ill. App. 3d 1056, 611 N.E.2d 1173, 183 Ill. Dec. 525 (1993); People v.
Knight, 173 A.D.2d 736, 570 N.Y.S.2d 617 (1991); State v. Thompson, No.
COA02-1597, 2003 WL 22388024 (N.C. App. Oct. 21, 2003) (unpublished
disposition listed in table at 160 N.C. App. 710 (2003)).
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inability to recall, silence, or changes of position.”36 The
question is whether it is reasonable to conclude that a wit-
ness who believed the truth of the fact asserted at trial would
probably not have omitted that fact when he or she made the
prior statement.
Here, Waddell confirmed that he gave a statement to Luce
just a few minutes after the attack and that he provided this
information so that the police could find the perpetrator. He did
not know the assailant, so he would have known that details
about the assailant’s appearance were critical to identifying and
apprehending him. So his omission of a prominent trait like
tattoos on the assailant’s face, neck, and body is sufficiently
inconsistent with his description of the assailant at trial. A wit-
ness who believed the truth of this statement would probably
not have failed to report this fact to the officers who would
be searching for the perpetrator. Even the State’s argument at
trial tacitly admitted that if Luce’s report was a full account
of Waddell’s description of his assailant soon after the assault,
then his description at trial was inconsistent with what he
reported to Luce. The same is true about the inconsistencies in
Waddell’s description of his assailant’s clothing.
On direct examination, Waddell said he remembered that
Ballew was wearing baggy pants and a baggier shirt but he
could not remember what color they were. This description
was most consistent with Ballew’s appearance in a photograph
that Luce took a few minutes after officers arrested Ballew.
Waddell testified that he was shown a picture from a camera
after he was placed in an ambulance and that he had seen
Luce’s photograph three other times before trial. The pho-
tograph depicts Ballew wearing a loose black T-shirt over a
white crewneck T-shirt and low-hanging jeans that exposed
36
Marco, supra note 34, 220 Neb. at 100, 368 N.W.2d at 473. Accord, U.S. v.
Cody, 114 F.3d 772 (8th Cir. 1997); U.S. v. Denetclaw, 96 F.3d 454 (10th
Cir. 1996); 28 Charles Alan Wright & Victor J. Gold, Federal Practice &
Procedure § 6203 (2d ed. 2012); G. Michael Fenner, The Hearsay Rule 61
(2003).
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the upper half of his boxer shorts. But Waddell described his
assailant to Luce before he saw any photographs, just a few
minutes after the assault, while he was still in the house. The
point of Ballew’s cross-examination of Waddell was to demon-
strate that the photograph (or photographs) Waddell saw after
his interview with Luce affected his memory of the assail-
ant’s appearance.
Ballew asked Waddell if he had told Luce his assailant
was wearing gym shorts and a “wife-beater” T-shirt, which
was described as a white tank top. Waddell responded that
he saw “gym shorts underneath.” Ballew then asked Waddell
whether he had told Luce that his assailant was a black male
with dreadlocks and tattoos, wearing gym shorts and a “wife-
beater” T-shirt, and he said yes. But his previous statement
that he had seen “gym shorts underneath” implied that he
had could have told Luce his assailant had on gym shorts
underneath outer baggy pants. And his testimony at trial
that his assailant was wearing a baggy shirt of an unknown
color was not consistent with his original description that his
assailant was wearing a white tank top. I believe that Ballew
should have had the opportunity to point out discrepancies in
Waddell’s description to Luce and his testimony at trial about
Ballew’s appearance.
Moreover, even if I agreed that the description inconsist­
encies were not inconsistent enough, Waddell explicitly stated
that he had told Luce that his assailant was a black male with
tattoos. This inconsistency is relevant to his account of his
own conduct and bears on his credibility as a witness.37 So I
disagree with the majority’s conclusion that the court properly
excluded evidence to impeach Waddell.
For similar reasons, I disagree with the majority’s conclu-
sion that the court correctly sustained the State’s hearsay objec-
tion to Luce’s testimony about Waddell’s prior statement. It
was not hearsay.
37
See, e.g., Stevens, supra note 34.
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Ballew Properly Attempted to Impeach
Waddell’s Testimony Through
Extrinsic Evidence of a Prior
Inconsistent Statement
A witness’ prior inconsistent statement that is admitted
solely to impeach a witness’ credibility is not offered for the
truth of the matter asserted and is therefore not hearsay.38
Neb. Rev. Stat. § 27-613 (Reissue 2008) authorizes a party to
introduce extrinsic evidence of a witness’ prior inconsistent
statement of a material fact if the witness has an opportunity
to explain or deny the statement and the opposing party has an
opportunity to interrogate the witness.
Here, when Ballew asked Luce what Waddell had said
to him about the assailant’s description, the State objected
that the question called for hearsay. In a sidebar conference,
Ballew’s counsel explained that she was seeking Luce’s tes-
timony to impeach Waddell’s testimony about the assailant’s
description and what he was wearing on the night of the attack.
The prosecutor argued that Ballew could only seek to refresh
Waddell’s memory on his description to Luce and ask him if
he had said anything different at that time. The court concluded
that Ballew’s question called for hearsay and that no excep-
tions applied. When Ballew’s counsel asked Luce if Waddell
had mentioned any tattoos, Luce could not recall. After Luce
was shown his report to refresh his memory, he was asked the
question again. But the court again sustained the State’s hear-
say objection.
The majority concludes that because the court ruled that the
question called for hearsay, it “inherently rejected Ballew’s
explanation for admissibility and determined that the pro-
posed testimony was not proper impeachment evidence.”
Again, nothing in the sidebar discussion shows that the court
even considered whether Waddell’s prior statements were
38
See, Stevens, supra note 34; Rodriguez, supra note 31; 2 McCormick on
Evidence § 249 (Kenneth S. Broun et al. eds., 7th ed. 2013); R. Collin
Mangrum, Mangrum on Nebraska Evidence 811 (2015).
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inconsistent enough to impeach his trial testimony. Logically,
because the court determined that Ballew had offered the
statement for the truth of the matter asserted, it did not simul-
taneously determine that even if he had not offered the prior
statement for its truth, there was no inconsistency between
Waddell’s prior statement and trial testimony. It is true that
the court stated no exceptions to the hearsay rule applied. But
prior inconsistent statements are not an exception. They are
excluded from the definition of hearsay. So the majority’s con-
clusion that Luce’s testimony about Waddell’s prior statement
was not admissible for a nonhearsay purpose is at odds with
the court’s exclusion of the testimony as hearsay. I conclude
the trial court’s hearsay rulings were also erroneous.
Regarding the majority’s alternative reasoning for exclud-
ing Waddell’s statement to Luce, I disagree it was not incon-
sistent enough with Waddell’s testimony to be admissible as a
prior inconsistent statement. As stated above, it is reasonable
to conclude that a witness who believed that his assailant had
tattoos on his face, neck, and body would not have failed to
mention that fact when describing his assailant to the police.
And if Waddell had believed that his assailant was wearing a
baggy dark T-shirt and gym shorts underneath baggy pants, he
would not have failed to mention those facts.
Court Erred in Excluding
Officer Tucker’s Impeachment
Testimony as Hearsay
At trial, Klapperich, Waddell’s friend, identified Ballew
as the person who slammed Waddell’s head into a Jeep
parked in front of the house and who fought with Waddell
in the street. On cross-examination, Klapperich admitted
that while he was sitting in Tucker’s patrol car, Tucker had
shown him photographs. But he could not recall identifying
Waddell’s assailant. Ballew called Tucker to impeach Waddell
and Klapperich. First, Ballew asked if a woman at the party
had showed him a photograph on her cell phone, which
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p­ hotograph he then showed to Waddell. Ballew was not in
the photograph. Tucker said after he showed the photograph
to Waddell in the ambulance, Waddell told him it was “one
of them with the dread locks.” The State did not object. But
when Tucker confirmed that he had shown a photographic
lineup to Klapperich, the State objected that Ballew could not
ask whether Klapperich had identified someone in the lineup
because the question called for hearsay.
Ballew argued that he was offering the evidence to impeach
Klapperich’s statement that he could not recall looking at a
photographic lineup or making an identification. The court
responded that Ballew had impeached Klapperich when Tucker
said that he showed Klapperich a photographic lineup and that
any further questioning would be asking for identification.
Ballew argued that he was not offering the testimony for its
truth but to show Klapperich had made a mistake in the identi-
fication. The court sustained the hearsay objection.
The majority opinion states that Ballew failed to make an
offer of proof to show that Tucker would testify that Klapperich
had identified someone besides Ballew. Nonetheless, it con-
cludes that the court did not err in rejecting Ballew’s argument
that Tucker’s testimony would produce nonhearsay evidence
of a prior inconsistent statement. The majority reasons that
Klapperich’s statements in Tucker’s report—which the court
excluded after the hearing on Ballew’s motion for a new trial—
shows that Klapperich’s prior statement was not inconsistent
with his trial testimony.
I think this reasoning is internally inconsistent and poten-
tially misleading to practitioners. When the substance of
excluded evidence “was apparent from the context within
which questions were asked,”39 an offer of proof is unneces-
sary.40 If the substance was not apparent to the trial court, then
the party waives an argument on appeal that the court erred
39
Neb. Rev. Stat. § 27-103(1)(b) (Reissue 2008).
40
See Rodriguez, supra note 31.
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in excluding the evidence.41 So if Ballew’s failure to make
an offer of proof were fatal to his argument, that conclusion
should be the end of the analysis. Nor should the majority
address the substance of Tucker’s report as a substitute for his
presumed testimony. That report is not in evidence. The court
excluded it as hearsay after the hearing on Ballew’s motion for
a new trial, and the majority has concluded that Ballew waived
any objections regarding that ruling.
In short, we should evaluate the court’s hearsay ruling
from the questioning at trial to determine whether the court
properly excluded Tucker’s testimony. Here, the substance of
the evidence that Ballew sought to introduce was clear. Both
the State’s argument and the court’s reasoning confirm that
the court excluded the evidence because Ballew sought con-
firmation that Klapperich had identified someone other than
Ballew as the assailant. That is, Ballew sought to show that
Klapperich had made a prior statement that was inconsistent
with his testimony that Ballew was the assailant. An offer of
proof was unnecessary under these circumstances.
More important, the court erred in excluding the evidence
as hearsay because Ballew offered it to impeach Klapperich’s
credibility, not to prove the truth of his previous statement:
The theory of impeachment does not depend upon the
prior statement being true and the present one false.
Instead, the mere fact that the witness stated the facts
differently on separate occasions is sufficient to impair
credibility. By “blowing hot and cold,” doubts are raised
as to the truthfulness or accuracy of both statements.
Thus, the prior statement is not offered for its truth and is
not hearsay.42
The State did not object that Klapperich’s statements were
not inconsistent enough to be inadmissible as a prior incon-
sistent statement. Moreover, even if Tucker’s report were part
41
See, e.g., State v. Sing, 275 Neb. 391, 746 N.W.2d 690 (2008).
42
2 McCormick on Evidence, supra note 38 at 195.
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of this record, we cannot know whether Ballew’s question-
ing would have fleshed out that report. But I disagree that
Klapperich’s prior statement would be inconsistent only if
he had positively identified someone besides Ballew as the
assailant. If Klapperich identified someone as a possible or
probable assailant and that person’s appearance was different
from his testimony at trial about Ballew’s appearance, this
discrepancy would bear on Klapperich’s credibility as a wit-
ness. Unfortunately, because the court incorrectly excluded
the evidence as hearsay, we cannot review whether it was
admissible for a nonhearsay purpose. Instead, the relevant
question is whether the rulings were harmless error. They
were not.
COURT’S EXCLUSION OF PROPER
IMPEACHMENT EVIDENCE WAS
NOT HARMLESS ERROR
An error in admitting or excluding evidence in a criminal
trial, whether of constitutional magnitude or otherwise, is
prejudicial unless the error was harmless beyond a reasonable
doubt.43 Harmless error review looks to the basis on which the
jury actually 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 whether the actual guilty verdict
rendered was surely unattributable to the error.44
Here, the witnesses gave conflicting testimony on key facts
at the party, so determining their credibility was of paramount
importance in finding Ballew guilty. Because the scene was
crowded and chaotic, the discrepancies in their testimony were
not insignificant.
There were 50 to 60 people at the party. Waddell and
Klapperich both said around 15 to 20 black males came to the
party and more than one them had a dreadlock hairstyle like
Ballew’s. A brawl broke out in the yard between a disputed
43
State v. Johnson, 290 Neb. 862, 862 N.W.2d 757 (2015).
44
Id.
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number of black males and white males, who did not previ-
ously know each other. Luce testified that the outside lighting
was low. There were discrepancies in the witnesses’ testimo-
nies on where Mock was and what he was doing when he was
stabbed. There were also discrepancies on Ballew’s placement
during the melee—whether he was in front of the house with
a group of 4 or 5 other black males fighting against about 10
white males, including Mock, or whether he was fighting a
few yards away with Waddell and others by the fence. Finally,
there were discrepancies in the witnesses’ testimony about
Ballew’s appearance.
Against this backdrop, prior inconsistent statements in
Waddell’s and Klapperich’s descriptions of the assailant were
obviously relevant to whether they had credibly identified
Ballew as the assailant. This is especially true when Waddell’s
memory could have been affected by a photograph of Ballew
that Waddell saw soon after his interview with Luce. This is
not a case in which the evidence of Ballew’s guilt was over-
whelming. I conclude that the court’s erroneous exclusion of
evidence relevant to Waddell’s and Klapperich’s credibility
was not harmless beyond a reasonable doubt. I would reverse
the judgments of conviction and remand the cause for a
new trial.