MILLER-LERMAN, J.
After a jury trial, at which the jury was instructed on aiding and abetting, Wesley E. Kitt was convicted of robbery, attempted robbery, two counts of use of a weapon to commit a felony, and second degree assault. The district court for Douglas County sentenced him to imprisonment for a total of 10 to 14 years. As postconviction relief, Kitt was granted a new direct appeal. The matter before us involves the direct appeal. In a memorandum opinion, the Nebraska Court of Appeals affirmed Kitt's convictions and sentences. See State v. Kitt, No. A-11-629, 2012 WL 1349905 (Neb.App. Apr. 17, 2012) (selected for posting to court Web site).
We granted Kitt's petition for further review. On further review, Kitt claims that the Court of Appeals erred when it affirmed the district court's determination that a witness, Joshua Harrington, was an unavailable witness and also determined that the record showed there was sufficient evidence to find Kitt guilty of all five charges. Unlike the Court of Appeals, we determine that the district court erred when it declared Harrington was unavailable and when it allowed his deposition testimony to be read into the record. However, because we conclude that this error was harmless, it does not require reversal of Kitt's convictions or the Court of Appeals' decision. Finally, we determine that the Court of Appeals did not err when it determined that the evidence supports the convictions. Although our reasoning differs from that of the Court of Appeals, we affirm.
The Court of Appeals stated the facts, for which there is support in the record, as follows:
State v. Kitt, No. A-11-629, 2012 WL 1349905 at *1-5 (Neb.App. Apr. 17, 2012) (selected for posting to court Web site).
As noted above, the present appeal to the Court of Appeals is a new direct appeal granted as relief in a related postconviction action. Kitt claimed that the district court erred when it found that Harrington was unavailable as a witness and therefore admitted Harrington's prior deposition testimony. Kitt also asserted that the evidence was insufficient to support his convictions, that he received ineffective assistance of counsel, and that the court imposed excessive sentences. The Court of Appeals rejected Kitt's assignments of error and affirmed his convictions and sentences.
As a general statement, under the hearsay rules in the Nebraska rules of evidence, if a witness is unavailable, the
As general matter, under Confrontation Clause analysis where a witness is unavailable, the deposition of the witness is testimonial evidence which can be received in evidence where the nonproponent has had an opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Court of Appeals cited State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007), for this proposition. The Court of Appeals concluded that the admission of Harrington's deposition was not a Confrontation Clause violation, because the Court of Appeals had determined that Harrington was unavailable under hearsay rule 804(1)(b) and Kitt had had a prior opportunity for cross-examination.
The Court of Appeals also rejected Kitt's assignments of error that he received ineffective assistance of counsel, that there was insufficient evidence to support his convictions, and that the district court abused its discretion by imposing excessive sentences. The Court of Appeals affirmed Kitt's convictions and sentences.
We granted Kitt's petition for further review.
On further review, Kitt claims that the Court of Appeals erred when it affirmed the district court's rulings in which it had (1) determined that Harrington was an unavailable witness and admitted Harrington's deposition into evidence and (2) determined that there was sufficient evidence for Kitt's convictions. For completeness, we note that Kitt does not assign as error the Court of Appeals' decisions on ineffective assistance of counsel and excessive sentences.
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 such discretion a factor in determining admissibility. State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).
In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012). The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.
Kitt claims generally that the Court of Appeals erred when it affirmed the district court's determination that Harrington was unavailable for trial and admitted Harrington's prior deposition testimony. Kitt specifically claims that the determination that Harrington was unavailable and the admission of Harrington's deposition were an abuse of discretion under the exception to the hearsay rule found at rule 804(2)(a). Kitt also specifically claims that the admission of Harrington's deposition is of constitutional magnitude as a violation of the Confrontation Clause. The Confrontation Clause, U.S. Const. amend. VI, provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." Article I, § 11, of the Nebraska Constitution provides in relevant part: "In all criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face...."
We find merit to Kitt's argument to the effect that the district court erred when it determined Harrington was unavailable under rule 804(1)(b) and admitted Harrington's deposition and that thus, the Court of Appeals erred when it endorsed this ruling. However, as explained below, we find that the error was harmless. Further, given the necessity of our harmless error review, we determine that although the Confrontation Clause analysis differs from the hearsay analysis, it is not necessary to engage in the Confrontation Clause analysis in this case because an error for Confrontation Clause purposes would likewise be subject to a harmless error review.
Generally, a hearsay statement is not admissible at trial. See Neb. Evid. R. 802, Neb.Rev.Stat. § 27-802 (Reissue 2008). However, rule 804(2)(a) provides an exception to the hearsay rule if the declarant is unavailable as a witness at trial. In such a case, the declarant's prior statement can be used at trial. Rule 804(2)(a) provides in part that if the declarant is unavailable as a witness, the hearsay rule does not exclude testimony given
Nebraska's rule 804(2)(a) is similar to rule 804(b)(1)(A) of the Federal Rules of Evidence. At the time of Kitt's trial, Fed. R.Evid. 804(b)(1) provided that if the declarant
Nebraska's rule 804(1)(b) sets forth the applicable definition of unavailability, stating that a witness is unavailable if he or she "[p]ersists in refusing to testify concerning the subject matter of his [or her] statement despite an order of the judge to do so." Similarly, at the time of Kitt's trial, federal rule 804 provided in relevant part:
For purposes of hearsay analysis, it is within the discretion of the trial court to determine whether the unavailability of a witness under Nebraska's rule 804 has been shown. See State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998). An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and the evidence. State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (2012).
As set forth in rule 804(1)(b), unavailability is a term of art. See People v. Bueno, 358 Ill.App.3d 143, 829 N.E.2d 402, 293 Ill.Dec. 819 (2005) (commenting on comparable Illinois rule language). Applying the language of rule 804(1)(b), the record shows that Harrington was not unavailable in this case because the judge did not order Harrington to testify before declaring him an unavailable witness. See Gregory v. Shelby County, Tenn., 220 F.3d 433 (6th Cir.2000). One court has stated: "It is clear ... that the Rule's requirement of a court order is a necessary prerequisite to a finding of unavailability of a recalcitrant witness under Rule 804. See United States v. Zappola, 646 F.2d 48, 54 (2d Cir.1981) (court order essential component in declaration of unavailability)...." Fowler v. State, 829 N.E.2d 459, 468 (Ind. 2005), abrogated in part on other grounds, Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). It has been observed that where a witness "appears at trial but refuses to respond, [the witness] does not become unavailable until the court orders the witness to answer and the refusal persists." Id. at 469.
The unavailability of a witness under rule 804 cannot be fully assessed until the judge orders the witness to testify, because in the absence of an order, it is not known what the witness will do. One court identified the obvious possibilities as follows: "1) [T]he witness decides to avoid contempt and repeats the earlier version; 2) the witness claims loss of memory; 3) the witness comes up with a new version; and 4) the witness persists in refusing to
The Court of Appeals relied largely upon State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996), when it determined that the district court did not err when it found Harrington unavailable. However, the finding of unavailability in McHenry was specific to the facts of that case. In McHenry, the district court determined that Frank Ladig, a witness in a murder trial who refused to testify, was unavailable. We affirmed.
The district court in McHenry requested Ladig to testify on three separate occasions, but Ladig persistently refused. The district court also asked Ladig if there was any physical safeguard or anything that the court could provide that would change Ladig's mind, and Ladig replied there was not. Furthermore, Ladig refused to take an oath, so he was not competent and could not testify. See Neb. Evid. R. 603, Neb.Rev.Stat. § 27-603 (Reissue 2008). Had the district court threatened to hold Ladig in contempt for refusing to testify, it would have been unavailing because Ladig was already serving a life sentence. See State v. Ladig, 248 Neb. 737, 539 N.W.2d 38 (1995). See, also, Gregory v. Shelby County, Tenn., 220 F.3d at 449 (stating that "any pressure of threat applied to the witness by the trial court would undoubtedly have been unavailing as the witness [was] already serving a life sentence"). The specific facts in McHenry were tantamount to the district court's ordering Ladig to testify before finding him unavailable, and we affirmed the rule 804 unavailability ruling.
In the present case, however, the district court did not order Harrington to testify before determining he was unavailable; nor are the facts of this case tantamount to an order. Harrington was present in the courtroom, and unlike Ladig, he took the oath and answered a few questions before he stopped answering questions. After Harrington stated upon examination by the State that he would not answer further questions, the judge asked Harrington once if he was going to refuse to testify before allowing Harrington to step down and excusing him as a witness. We agree with the observation that "the unavailability requirement in Rule 804 contemplates more than a brief or minimal examination by the trial court." State v. Finney, 358 N.C. 79, 87, 591 S.E.2d 863, 868 (2004). Furthermore, we cannot say that a threat of contempt would have been unavailing, because unlike Ladig, who was serving a life sentence in the McHenry case, Harrington, according to his deposition, was serving an 8- to 12-year sentence.
Because there was no district court order for Harrington to testify followed by persistent refusals, we determine the district court erred under rule 804 when it determined that Harrington was unavailable and when it admitted Harrington's deposition. An incorrect unavailability determination and the consequent admission of improper evidence under rule 804 are subject to a harmless error analysis. See, Gregory v. Shelby County, Tenn., 220 F.3d 433 (6th Cir.2000) (stating that error in finding witness unavailable under rule 804 was harmless); State v. Perry, 144 Idaho 266, 159 P.3d 903 (Idaho App.2007) (stating that incorrect finding of unavailability under rule 804 is subject to harmless error analysis). Accordingly, later in this opinion, we will conduct a harmless error analysis.
In addition to his claim that the Court of Appeals erred under the statutory rules of evidence relating to hearsay when it approved the district court's order permitting Harrington's deposition to be read to the jury, Kitt also claims that the Court of Appeals erred as a constitutional matter when it concluded that the reading of the deposition was not a violation of the Confrontation Clause. Having found that Harrington was unavailable under the hearsay-related rules of evidence, rule 804(1)(b), the Court of Appeals then considered Kitt's challenge under the Confrontation Clause. The entirety of the Court of Appeals' constitutional analysis was as follows:
The foregoing analysis appears to assume that "unavailability" under the hearsay evidence rules equates with "unavailability" under Confrontation Clause constitutional principles. To the extent such equation was made, we caution against it.
It is well settled that "cases involving the admission of [an unavailable declarant's prior] out-of-court statements [give] rise to Confrontation Clause issues `because hearsay evidence was admitted as substantive evidence against the defendant[].'" Delaware v. Fensterer, 474 U.S. 15, 18, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (quoting Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)). The U.S. Supreme Court has observed that the "hearsay rules and the Confrontation Clause are generally designed to protect similar values" but has cautioned that the prohibitions of the Confrontation Clause do not "equate ... with the general rule prohibiting the admission of hearsay statements." Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). The Court in California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), stated:
Finally, we note that one court has observed that an unavailability determination may not yield the same result under hearsay analysis as distinguished from Confrontation Clause analysis, stating, in reference to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004): "We therefore cannot import the availability doctrine of [federal] Rule 804(a) wholesale into Crawford." Fowler v. State, 829 N.E.2d 459, 469 (Ind.2005), abrogated in part on other grounds, Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).
We are aware that the contours of the post-Crawford jurisprudence regarding
If we determined that the Court of Appeals and district court erred when they determined that Harrington was unavailable for Confrontation Clause purposes, we would need to determine if the admission of the deposition constituted harmless error because of the constitutional error. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (stating that Confrontation Clause violations are subject to harmless error analysis). See, also, Crawford v. Washington, 541 U.S. at 76, 124 S.Ct. 1354 (Rehnquist, C.J., concurring in the judgment) (reading the opinion to "implicit[ly] recogni[ze]" that Confrontation Clause violations continue to be subject to harmless error analysis); Hernandez v. State, 124 Nev. 639, 188 P.3d 1126 (2008) (performing harmless error analysis on incorrect finding of unavailability under Confrontation Clause and incorrect admission of prior testimony).
If we determined that the Court of Appeals and the district court were correct that Harrington was unavailable for Confrontation Clause purposes, thus approving of the admission of Harrington's deposition testimony, no action would be required of us based on such determination. However, we are nevertheless required to perform a harmless error analysis because, as explained above, we have determined that it was error to find Harrington unavailable for rule 804 hearsay analysis purposes and to admit his deposition on that basis.
By virtue of our earlier determination, we are already required to perform a harmless error analysis. Therefore, although we have noted that as it relates to a refusal to testify, an unavailability analysis under the hearsay rule of evidence differs from an unavailability analysis under the Confrontation Clause, under the circumstances of this case, it is not necessary for us to perform a Confrontation Clause analysis of availability and consider whether the Court of Appeals erred in relation thereto.
We have determined above that it was error to admit Harrington's deposition based on an erroneous determination that Harrington was unavailable under rule 804(1)(b), and we are therefore required to perform a harmless error analysis. Harmless error review looks to the basis on which the trier of fact 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, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error. State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012). We determine that the jury's verdicts were surely unattributable to the erroneous admission of Harrington's deposition testimony.
At trial, Jamie Hann testified that when she and Jacob Hann returned to Jamie's apartment complex the night of the incident at issue, she exited the car and a man approached her, pointed a silver handgun at her head, and told her to give him her money. Jamie testified that she gave the man her wallet, which she identified as an exhibit at trial. Jamie testified that she then saw a second man, with a black handgun,
Jacob testified at trial that on the night in question, he and Jamie returned to Jamie's apartment complex. When Jacob exited the car, he saw that an African-American man wearing a bandanna was pointing a gun at Jamie. Then a second man pointed a black handgun at Jacob's face. Jacob described his assailant as an African-American man wearing a bandanna who was a little shorter than Jamie's assailant and perhaps shorter than Jacob himself. Jacob testified the man demanded money from Jacob, who refused. The man then hit Jacob in the mouth. Jacob pulled out his money clip to show the man that he did not have any money, and the man then hit Jacob with the pistol. Jacob later received eight stitches as a result of the blow. Jacob testified that after he fell to the ground as a result of being hit, he heard a vehicle stop and then heard the sound of gunshots. Jacob observed the two assailants run away and then checked on Jamie to see if she was all right.
Officer Kevin Vodicka testified that on the night of the incident at issue, he was working as an off-duty security person for the apartment complex. He was in full uniform, but driving his own vehicle. Vodicka testified that the apartment complex was laid out in a circle and that he would drive in a counterclockwise direction watching for signs of suspicious activity. Vodicka testified that at approximately 1:30 a.m., he observed an older white Pontiac Grand Am driving around the parking lot. He watched the car for 20 or 25 minutes while he continued to patrol. Vodicka testified that the Grand Am would go to all the dead ends, back up, drive around, park, and back up again. Vodicka testified he thought the activity of the Grand Am was suspicious.
Vodicka testified that he saw two individuals in the Grand Am. As Vodicka passed the Grand Am, the passenger had the window rolled down approximately three-fourths of the way, and the passenger stuck his head out a couple of inches, trying to look through Vodicka's windows. Vodicka testified that he got a pretty good view of the passenger's face and that the passenger gave him a look "kind of like the evil eye." Vodicka identified the passenger as Kitt. Vodicka testified that he paid attention to the passenger because of the vehicle's suspicious activity.
Vodicka testified that soon after seeing the passenger in the Grand Am, whom at trial he identified as Kitt, he saw the Grand Am parked with no one inside. On his next lap around the parking lot, Vodicka saw a black man dressed in black clothing hit a white man. He also saw a woman and a third man. Vodicka testified that he sped up, trying to stop the assault. He exited his car and announced, "`Omaha Police.'" Vodicka testified that he observed one of the assailants holding a silver revolver and wearing a bandanna. Vodicka described the other assailant, who struck the white man, as wearing a bandanna and holding a black semiautomatic handgun.
Furthermore, Officer Robert Singley testified that he conducted a traffic stop at approximately 1 a.m. because he had observed a white Grand Am sitting in the left-turn lane of an intersection with its turn signal on, but not moving despite the fact that there was no traffic. After contacting the occupants of the vehicle, Singley learned that the driver was Harrington and the passenger was Kitt. Singley testified Harrington and Kitt told him that they were looking for a particular apartment complex to visit a friend and that they were not sure how to get there. The apartment complex Harrington and Kitt stated they were looking for is the same complex where Jamie lived and the crimes occurred. Singley ran a background check on Harrington and Kitt and, after finding no warrants, gave them a verbal warning and directions and let them go.
This testimony and other evidence adduced at trial indicate that Jamie was robbed by a man with a silver gun and that a man with a black gun assaulted and attempted to rob Jacob. Singley placed Kitt near the scene prior to the crimes and directed him to the apartment complex. Vodicka's testimony placed Kitt at the apartment complex moments before the time the crimes occurred and placed Kitt in the white Grand Am which later sped away from the area of the crimes. Jamie watched one assailant get into a midsized white vehicle. The foregoing evidence supports the convictions, without reference to the content of Harrington's deposition testimony.
In his deposition read to the jury, Harrington testified that he knew Kitt through basketball and socially. He testified that the idea to rob people originated with Kitt and that Harrington had a job and did not need to rob anyone. Harrington stated that Kitt supplied a ski mask and bandanna, and he placed himself and Kitt at the scene of the crimes.
Harrington stated that Kitt had a silver gun. Harrington initially stated that he had only a fake black gun. Harrington stated that he had told people he had bought a real gun, but that that was a lie. However, later in his testimony, Harrington stated that after the incident, he called a friend to remove a real gun from his car. Harrington stated that Kitt hit a victim but later testified that he might have hit the victim.
Harrington testified that both he and Kitt had been drinking the night of the crimes and that he had also smoked marijuana that day. He indicated that as a result, his memory of June 9, 2007, was not good but his "drunkenness and ... highness kind of left when [he] got shot." Harrington stated that when he was interviewed by the police at the hospital, he did not tell the truth. He stated that he later told the truth to the police but that his recollection of the incident at the time of the deposition was not good.
Section 28-206 does not define aiding and abetting as a separate crime. See State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). We have stated that "aiding and abetting is simply another basis for holding one liable for the underlying crime." Id. at 295, 802 N.W.2d at 886. By its terms, § 28-206 provides that a person who aids or abets may be prosecuted and punished as if he or she were the principal offender. We have stated that aiding and abetting requires some participation in a criminal act and must be evidenced by some word, act, or deed. State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011). No particular acts are necessary, nor is it necessary that the defendant take physical part in the commission of the crime or that there was an express agreement to commit the crime. Id. Mere encouragement or assistance is sufficient. Id.
An information charging a defendant with a specific crime gives the defendant adequate notice that he or she may be prosecuted for the crime specified or as having aided and abetted the commission of the crime specified. State v. Contreras, supra. In the present case, the amended information charged Kitt with six crimes: robbery of Jamie and associated use of a weapon, attempted robbery of Jacob and associated use of a weapon, assault in the second degree of Jacob, and attempted assault of Vodicka, of which Kitt was acquitted. We have stated that one can be convicted of aiding and abetting use of a deadly weapon even if the jury believed that the defendant was unarmed. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002). We have also stated that one can be convicted of aiding and abetting an attempted crime. See State v. Contreras, supra. The district court provided the jury with an aiding and abetting instruction.
Based on the foregoing law and the evidence we have summarized above, we determine that the jury's verdicts in this case convicting Kitt either as the principal offender or as an aider and abettor were surely unattributable to the erroneous admission of Harrington's deposition testimony. Although we recognize that Harrington placed Kitt at the area of the crime, the testimony of Vodicka did likewise. Harrington's deposition testimony summarized above contains numerous confusing and internally inconsistent statements such that a rational trier of fact would not be particularly inclined to rely on it as he or she evaluated all the evidence. Therefore, the district court's error in declaring Harrington unavailable as a witness under rule 804 and admitting his deposition testimony was harmless. Accordingly, neither the Court of Appeals' affirmance of the district court's ruling nor Kitt's convictions require reversal.
Kitt claims that there was not sufficient evidence to support his convictions.
Although the district court erred when it declared Harrington unavailable as a witness under rule 804 and admitted Harrington's deposition testimony, we conclude that this was harmless error and does not require reversal of Kitt's convictions or of the Court of Appeals' affirmance of the district court's rulings. Given the aiding and abetting instruction and the facts, the evidence is sufficient to support the convictions. Although for reasons which differ from the Court of Appeals' reasoning, we affirm.
AFFIRMED.
CASSEL, J., not participating.
