Stacy, J.
This is the second direct appeal brought by De'Aris R. Trice, challenging his conviction for second degree murder. In his first direct appeal, we concluded the jury had not been properly instructed on the interplay between second degree murder and sudden quarrel manslaughter.
On remand, Trice waived a jury. Following a 2-day bench trial, he again was found guilty of second degree murder and again was sentenced to a prison term of 40 years to life. He timely filed this direct appeal, assigning error to various evidentiary rulings and arguing the sentence imposed was excessive. Finding no reversible error, we affirm.
On December 26, 2010, Timothy Warren was stabbed when a fight broke out during a party in Norfolk, Nebraska. Warren died from his injuries.
Our opinion in State v. Trice
In the first trial, Robyn Baldwin testified and was cross-examined. She was subpoenaed to appear as a witness in the second trial, but failed to appear. In the first trial, Baldwin testified that the day before the stabbing, she overheard her sister, Trice's girlfriend, tell him she wanted to end the relationship. Baldwin then heard Trice respond: "`Well, if you're done with me, then I might as well just kill myself or hurt somebody . . . I'll just go murder somebody. I might as well be in jail without you in my life.'"
Roughly 1 month before Trice's second trial, the State served Baldwin with a subpoena to testify. The deputy sheriff who served the subpoena testified he called Baldwin on her cell phone and she agreed to meet him later that day to accept service. He personally served Baldwin with the subpoena.
The district court clerk who was responsible for checking in subpoenaed witnesses during the second trial testified that Baldwin had not appeared and had not telephoned the court to indicate she would be late. A Norfolk police officer who was familiar with Baldwin also testified he had "been all through" the courthouse while witnesses were showing up for trial and did not see Baldwin.
The State asked the court to find Baldwin unavailable under Neb.Rev.Stat. § 27-804(1)(e) (Reissue 2008) and offered a transcript of Baldwin's testimony from the first trial. Trice objected, pointing out Baldwin lived in the area and "had been found" previously. The trial court concluded Baldwin was unavailable and received the transcript of her testimony from the first trial into evidence over Trice's hearsay objection.
Trice's brother Ronald testified and was cross-examined in the first trial but was not present for the second trial. In the first trial, Ronald testified about Trice's activities in the days leading up to the party and described what happened during the party, both before and after the stabbing. Ronald also testified about a conversation he had with Trice shortly after the stabbing. During this conversation, Ronald asked Trice "five or six times" whether he was responsible for the stabbing and each time Trice denied stabbing anyone. Ronald then said, "`I don't need you to lie to me, did you do it?'" to which Trice replied, "`Yeah, I—I had to, I had to protect you and me.'"
About 6 weeks before the second trial, the State filed a "Certificate to Compel Attendance of Witness" seeking to have Ronald served with process in Chicago, Illinois, where it was understood he was living. Roughly 20 days before trial, the State discovered the paperwork had not arrived in Chicago due to a clerical mistake. The paperwork was immediately reissued, and the State contacted the extradition unit in Chicago to request expedited service. The extradition unit agreed to make it a "top priority" and indicated it would use investigators to locate and serve Ronald. The State stayed in contact with the authorities in Chicago up to and including the time of trial. One week before trial, Chicago authorities reported an investigator had gone to Ronald's address to attempt service. The investigator made contact there with Ronald's parents, who reported Ronald was no longer in Illinois. The investigator was unable to serve Ronald and did not have any other information on his whereabouts, but did learn Ronald might be planning to return to Norfolk for trial. The possibility that Ronald planned
The State suggested Ronald was actively resisting efforts to procure his attendance and asked the trial court to find him unavailable under § 27-804(1)(e). Trice argued the State had not made a sufficient effort to procure Ronald's attendance and thus had not shown he was unavailable. The court found Ronald was unavailable and received the transcript of his testimony from the first trial into evidence over Trice's hearsay objection.
Guadalupe Reyes testified that at the time of the stabbing, she was dating Jaron Hoard. Hoard was one of two eyewitnesses who testified to seeing Trice stab the victim. Reyes did not attend the party, but she testified that a few hours after the party, Hoard came home "crying" and under "[a] lot of stress." Reyes asked Hoard what was wrong, and he replied that "his friend got stabbed." Trice objected to Reyes' testimony regarding Hoard's statement on hearsay grounds. The trial court overruled the hearsay objection, finding the statement was admissible as a prior consistent statement under Neb.Rev.Stat. § 27-801(4)(a)(ii) (Reissue 2008). The trial court expressly rejected the State's alternative theory that Hoard's statement was admissible as an excited utterance under Neb.Rev.Stat. § 27-803(1) (Reissue 2008).
After Trice was arrested and while he was being held in jail, Trice had a telephone conversation with his father. The conversation was recorded by the jail. A portion of the call was transcribed and offered by the State at the second trial. The transcript shows Trice's father asked him, "What are you pleading?" and Trice answered, "Not Guilty." His father then asked, "By reason of what? Self-defense?" and Trice replied, "Yes sir." The State suggested Trice's response (that he planned to claim self-defense) amounted to an admission that he had stabbed the victim.
Trice objected to the admission of the transcript on grounds his father's statements were inadmissible hearsay. The court overruled the hearsay objection and received the transcript into evidence, concluding the conversation amounted to an adoptive admission under § 27-801(4)(b).
At the conclusion of the 2-day bench trial, Trice was found guilty of second degree murder. After requesting an update to the presentence investigation, the trial court sentenced Trice to a term of 40 years to life in prison. Trice timely appealed.
Trice assigns the trial court erred in (1) finding Baldwin and Ronald unavailable and admitting transcripts of their testimony from the first trial over Trice's hearsay objection, (2) admitting Reyes' testimony over Trice's hearsay objection, (3) admitting the transcript of the jail call over Trice's hearsay objection, and (4) imposing an excessive sentence.
For purposes of hearsay analysis, it is within the discretion of the trial court to determine whether the unavailability of a witness has been shown.
Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
Trice claims the trial court erred when it found Baldwin and Ronald were unavailable and admitted transcripts of their prior trial testimony under the exception to hearsay found in § 27-804(2)(a). Under that statute, testimony given by a witness at a prior proceeding is not "excluded by the hearsay rule if the declarant is unavailable as a witness."
Section 27-804(1)(e) defines "unavailability" to include situations where a witness "[i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means." A declarant is not unavailable if his absence is due to the "wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying."
The burden to establish a declarant's unavailability is on the party seeking to introduce the evidence.
In prior cases, we have addressed unavailability when a witness cannot be located,
We begin by noting that the plain language of § 27-804(1)(e) provides a witness can be procured "by process or other reasonable means." We understand this language to indicate process is not just one of the reasonable means of procuring a witness at trial, it is the preferred means. When a witness against an accused in a criminal case is within the reach of process, the prosecution generally must resort to process to satisfy the good faith standard.
Trice argues that merely serving the subpoena on Baldwin was insufficient evidence of good faith. He argues that when Baldwin failed to appear, the State should have requested a bench warrant, and he suggests it was error to find Baldwin unavailable before additional steps were taken to enforce the subpoena.
In Ohio v. Roberts,
When considering whether a good faith effort to procure a witness has been made under § 27-804(1)(e), the proper inquiry is whether the means utilized by the proponent prior to trial were reasonable, not whether other means remain
We find no abuse of discretion in the trial court's conclusion that Baldwin was unavailable. The State made a good faith effort to secure Baldwin's attendance at trial by personally serving her with a subpoena to testify roughly 1 month before trial. And while Baldwin ultimately failed to obey the subpoena, there was no evidence her absence at trial was due to any prosecutorial wrongdoing.
We are not persuaded by Trice's argument that unavailability was not shown because no bench warrant was issued after Baldwin failed to appear. When a subpoenaed witness fails to comply with process and is absent from the trial due to no wrongdoing of the proponent, decisions about whether additional efforts to obtain the presence of the witness would be successful or practicable are properly left to the discretion of the trial court.
On this record, the trial court did not abuse its discretion by making the unavailability determination without first requiring efforts to enforce the subpoena. We assume a motion for bench warrant would have been sustained if requested, but no such request was made. And when the issue of unavailability was presented to the trial court for ruling, neither party suggested a ruling was premature or should be postponed, or that additional steps would be successful in obtaining Baldwin's presence. While the trial court certainly had discretion—even without a motion—to issue an attachment for the arrest of Baldwin when she failed to obey the subpoena,
The State did not locate Ronald or serve him with process compelling his appearance as a witness in the second trial. The issue on appeal is whether the prosecution made a diligent, good faith effort to locate Ronald and procure his attendance at the second trial.
In Callies v. State,
In State v. Williams,
In State v. Carter,
Our review of the record in the present case shows the prosecution's efforts to locate and serve Ronald were strikingly similar to those we found in Carter had satisfied the standard of diligence and good faith. Here, the prosecution demonstrated considerable coordination with out-of-state authorities in an effort to locate and serve Ronald with process to compel his attendance at trial. Those coordinated efforts began well in advance of trial and continued up to the time of trial. We conclude there was no abuse of discretion in the trial court's finding that the State made a diligent, good faith effort to locate Ronald and secure his presence at trial and that Ronald was unavailable under § 27-804(1)(e).
In his brief, Trice also argues the admission of Baldwin's and Ronald's prior testimony violated his rights under the Confrontation Clause. However, Trice did not raise a Confrontation Clause objection at trial. On appeal, a defendant may not assert a different ground for his objection to the admission of evidence than was offered to the trier of fact.
Over Trice's hearsay objection, the court permitted Reyes to testify that when Hoard arrived home from the party, he told her "his friend got stabbed." The trial court concluded Hoard's statement was admissible as a prior consistent statement under § 27-801(4)(a)(ii). The court expressly rejected the State's alternative position that Hoard's statement was admissible as an excited utterance under § 27-803(1).
On appeal, Trice argues the trial court erred in overruling his hearsay objection because Hoard's testimony had not been attacked in such a manner that a prior consistent statement was warranted to rebut an express or implied charge of recent fabrication.
Even assuming the statement "his friend got stabbed" was being offered for its truth, we need not consider whether Hoard's statement to Reyes was an excited utterance or a prior consistent statement, because we conclude any error in overruling
Where the evidence is cumulative and there is other competent evidence to support the conviction, the improper admission or exclusion of evidence is harmless beyond a reasonable doubt.
Trice argues the trial court erred in overruling his hearsay objection to the partial transcript of the jail call between Trice and his father. The State responds that the conversation amounted to an adoptive admission under § 27-801(4)(b)(ii) and that the court correctly overruled the hearsay objection on that ground.
Section 27-801(4)(b) excludes from the definition of hearsay a statement which is "offered against a party and is. . . (ii) a statement of which he has manifested his adoption or belief in its truth." "Where the party against whom a statement is offered is present, hears the statement being made, and makes no objection" the trial court may admit such evidence as nonhearsay.
Here, Trice and his father were talking to one another on the telephone. When Trice told his father he was entering a plea of not guilty, his father asked, "By reason of what? Self-defense?" Trice replied, "Yes sir." Assuming without deciding that the father's question constituted an assertion subject to the hearsay rule, it is clear Trice heard his father's words and expressed agreement with them. The trial court correctly overruled Trice's hearsay objection and admitted this as nonhearsay under § 27-801(4)(b)(ii).
Trice also argues that admission of the jail-call transcript violated his rights under the Confrontation Clause. We do not reach this argument, because Trice did not raise a Confrontation Clause objection at trial, and he cannot now assert a different ground for his objection than was offered to the trier of fact.
Trice was convicted of second degree murder, a Class IB felony.
When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission
Trice concedes his sentence of 40 years to life in prison is within the statutory range, but argues on appeal that the maximum term of life in prison amounts to an abuse of discretion. Trice suggests the trial court did not give sufficient consideration to his age, his educational struggles, or his limited criminal history. Our review of the record shows otherwise.
When imposing sentence, the trial court considered the information in the original and updated presentence investigation reports and the information provided during both sentencing hearings. The presentence report indicates Trice was 21 years old when the crime was committed. He dropped out of school in the 10th grade and was diagnosed with a learning disability. Trice had an extensive juvenile history in both Illinois and Nebraska, but this murder was his first felony conviction as an adult. In addition to the information in the pre-sentence report, the court asked Trice several questions about his family relationships and his educational progress. When announcing the sentence, the court emphasized the tragic nature of the crime, the senseless loss of life, Trice's lack of remorse, and his continued refusal to accept responsibility for the crime.
We also note the State recommended that the sentence be increased from what was imposed after the first trial, pointing to evidence in the second trial that Trice had made "efforts to thwart justice" and tried to "harm or get rid of" one of the State's eyewitnesses. The court rejected the State's recommendation and instead found no sufficient basis on which to either increase or decrease the previously imposed sentence of 40 years to life in prison.
Contrary to Trice's assertions on appeal, there is no evidence that the district court failed to consider all of the relevant factors in imposing sentence. After reviewing the record, we find no abuse of discretion in the sentence imposed by the trial court and conclude Trice's assertions to the contrary are meritless.
Finding no reversible error in any of the assignments of error on appeal, we affirm the judgment and sentence of the trial court in all respects.
AFFIRMED.
Heavican, C.J., not participating.
