State v. Hickey , 27 Neb. Ct. App. 516 ( 2019 )

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STATE v. HICKEY
Cite as 27 Neb. Ct. App. 516
State of Nebraska, appellee, v.
Shantrell A. Hickey, appellant.
___ N.W.2d ___
Filed August 13, 2019. No. A-18-351.
1. Constitutional Law: Witnesses: Appeal and Error. An appellate
court reviews de novo a trial court’s determination of the protections
afforded by the Confrontation Clause of the Sixth Amendment to the
U.S. Constitution and reviews the underlying factual determinations for
clear error.
2. Rules of Evidence: Appeal and Error. 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 determin-
ing admissibility.
3. ____: ____. Where the Nebraska Evidence Rules commit the eviden-
tiary question at issue to the discretion of the trial court, an appellate
court reviews the admissibility of evidence for an abuse of discretion.
4. Constitutional Law: Trial: Rules of Evidence: Hearsay. Where “tes-
timonial” statements are at issue, the Confrontation Clause demands
that such out-of-court hearsay statements be admitted at trial only if
the declarant is unavailable and there had been a prior opportunity for
cross-examination.
5. Criminal Law: Appeal and Error. Harmless error jurisprudence rec-
ognizes that not all trial errors, even those of constitutional magnitude,
entitle a criminal defendant to the reversal of an adverse trial result.
6. Convictions: Appeal and Error. It is only prejudicial error, that is,
error which cannot be said to be harmless beyond a reasonable doubt,
which requires a reversal.
7. Evidence: Words and Phrases. Cumulative evidence means evi-
dence tending to prove the same point of which other evidence has
been offered.
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8. Rules of Evidence: Testimony. Under Neb. Rev. Stat. §§ 27-701 and
27-702 (Reissue 2016), opinion testimony, whether by a lay or expert
witness, is permissible only if it is helpful to the trier of fact in making
a determination of a fact in issue.
9. Rules of Evidence: Proof. Under what is commonly and incorrectly
referred to as the “best evidence rule,” in order to prove the content of
a writing, recording, or photograph, the original writing, recording, or
photograph is required.
10. ____: ____. The “original writings rule” applies only if the party offer-
ing the evidence is seeking to prove the contents of a writing, recording,
or photograph.
11. Constitutional Law: Rules of the Supreme Court: Courts: Statutes.
Strict compliance with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is nec-
essary whenever a litigant challenges the constitutionality of a statute,
regardless of how that constitutional challenge may be characterized.
12. Criminal Law: Evidence: New Trial: Appeal and Error. Upon find-
ing reversible error in a criminal trial, an appellate court must determine
whether the total evidence admitted by the district court, erroneously or
not, was sufficient to sustain a guilty verdict.
13. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evi-
dence is not sufficient to sustain a verdict after an appellate court finds
reversible error, then double jeopardy forbids a remand for a new trial.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Reversed and remanded for a new trial.
Joe Nigro, Lancaster County Public Defender, and Nathan J.
Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
R iedmann, A rterburn, and Welch, Judges.
R iedmann, Judge.
INTRODUCTION
Shantrell A. Hickey appeals his convictions in the district
court for Lancaster County of discharge of a firearm near a
vehicle or building and use of a firearm to commit a felony.
We find that the district court erred in admitting into evidence
at trial testimonial statements from a police interrogation.
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Therefore, we reverse the convictions and remand the cause
for a new trial.
BACKGROUND
Hickey was charged with discharge of a firearm near a
vehicle or building and use of a firearm to commit a felony
as a result of a shooting that occurred in Lincoln, Nebraska,
on February 21, 2017. Callers to the 911 emergency dispatch
service that evening reported hearing gunshots, but the Lincoln
police officers who responded to the area were unable to
determine where the shooting had occurred. Two days later,
bullet casings were found in the parking lot of a gas station in
the area where the gunshots were heard. Lincoln police then
discovered that the shooting had been captured on the surveil-
lance camera at the gas station. The surveillance video depicts
a white car pulling up near another vehicle parked at the gas
station. The shooter emerges from the passenger side of the
back seat of the white car and begins firing a gun at the other
vehicle as it pulls away and leaves the parking lot.
After viewing the video, police officers were able to identify
the white car and locate its registered owner. The owner was
ultimately arrested, read his Miranda rights, and interviewed
at the police station. During the interrogation by police, he
admitted that he was driving the white car at the time of the
shooting and implicated Hickey as the shooter. He also identi-
fied Hickey’s brother as another occupant of the car at the time
of the shooting.
The matter proceeded to a jury trial in October 2017. The
jury was unable to reach a verdict, however, and the district
court declared a mistrial.
A second jury trial was held in February 2018. The video
of the shooting was received into evidence at trial and played
for the jury. Lincoln police officer Maxwell Hubka, the pri-
mary investigator on the case, explained that upon viewing
the video, he immediately identified Hickey as the shooter.
He explained that he recognized Hickey because at the time
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of the shooting, he had known Hickey for approximately 14
months, had met him “ten plus times,” and had “talked to him
face to face numerous times.” He noted that he recognized
Hickey’s facial features at a certain point in the video where
the shooter’s face is more visible. Hubka testified that he was
additionally able to recognize Hickey because of the way he
moved; his clothing, height, weight, build, and facial appear-
ance; his earring; his hairstyle; and the other people present in
the video.
Similarly, Lincoln police officer Steven Berry testified that
he had been familiar with Hickey for approximately 3 years
before the shooting. He has observed Hickey in photographs
and videos posted to social media pages and met Hickey in
person on more than one occasion. Berry explained that there-
fore he was familiar with Hickey’s voice, walk and movement,
clothing, hairstyle, family, and associates. Upon viewing the
video, Berry was able to identify Hickey “pretty quickly”
given his familiarity with Hickey and the other people depicted
in the video. Hickey objected to the testimony of Hubka and
Berry identifying him as the shooter on the video, but the dis-
trict court overruled the objections.
The State also called the driver of the white car to testify
at trial, first outside the presence of the jury and then in front
of the jury. The driver repeatedly refused to answer questions
regarding the shooting, despite an order from the court that
he do so; therefore, the district court held him in contempt
of court and determined that he was unavailable as a witness
pursuant to Neb. Rev. Stat. § 27-804(1)(b) (Reissue 2016). As
a result of the driver’s unavailability, the State offered into
evidence portions of the statements he made during his police
interrogation. Hickey objected on Confrontation Clause and
hearsay grounds, but his objections were overruled.
The statements were received into evidence in the form
of five clips of the video recording of the police interroga-
tion, which were played for the jury at trial. In the clips, the
driver admitted that he was driving his white car during the
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shooting, that Hickey and his brother were in the car with
him, and that Hickey was the shooter.
Hickey and his brother both testified at trial, and they each
denied that Hickey was the shooter. Hickey’s brother said that
he was the shooter and that Hickey was not in the car or at the
scene of the shooting. Hickey denied being at the scene.
At the conclusion of evidence and after deliberating, the
jury found Hickey guilty of both counts. He was sentenced
to consecutive terms of imprisonment of 10 to 25 years.
Hickey appeals.
ASSIGNMENTS OF ERROR
Hickey assigns, restated, that the district court erred in (1)
admitting the driver’s statements into evidence in violation
of the Confrontation Clause, (2) admitting the driver’s state-
ments into evidence under an exception to the hearsay rule,
(3) denying Hickey’s proffered jury instructions, (4) applying
unconstitutional special legislation and finding Hickey guilty
under Neb. Rev. Stat. § 28-1212.04 (Reissue 2016), (5) allow-
ing Hubka and Berry to identify Hickey as the shooter shown
in the surveillance video, and (6) finding sufficient evidence to
support the convictions.
STANDARD OF REVIEW
[1] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution and
reviews the underlying factual determinations for clear error.
State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
[2,3] 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 admis-
sibility. State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).
Where the Nebraska Evidence Rules commit the evidentiary
question at issue to the discretion of the trial court, an appellate
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court reviews the admissibility of evidence for an abuse of
discretion. Id.
ANALYSIS
Confrontation Clause.
Hickey argues that the district court erred in admitting into
evidence the driver’s statements because they violate his right
of confrontation. We agree.
[4] The Confrontation Clause, U.S. Const. amend. VI, pro-
vides, in relevant part: “‘In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .’” State v. Fischer, 272 Neb. 963,
968, 726 N.W.2d 176, 181 (2007). In Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the
U.S. Supreme Court held that where “testimonial” statements
are at issue, the Confrontation Clause demands that such out-
of-court hearsay statements be admitted at trial only if the
declarant is unavailable and there had been a prior opportunity
for cross-examination.
Although the U.S. Supreme Court declined to provide a
comprehensive definition of “testimonial,” it stated that testi-
monial statements include, at a minimum, prior testimony at a
preliminary hearing, before a grand jury, or at a former trial,
and police interrogations. See Crawford v. Washington, supra.
See, also, State v. Fischer, supra. Despite the lack of a precise
definition, the Court concluded that a statement made by the
petitioner’s wife was testimonial because she made the state-
ment while under police interrogation, and the questioning
that generated her statement—which was made and recorded
while she was in police custody, after having been given
Miranda warnings as a possible suspect herself—qualified as
testimonial under any conceivable definition of an interroga-
tion. See id. Later, in Davis v. Washington, 547 U.S. 813, 126
S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the Court similarly
concluded that statements made during a police interrogation
are testimonial when the circumstances objectively indicate
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that there is no ongoing emergency and the primary purpose
of the interrogation is to prove past events potentially relevant
to later criminal prosecution.
Similar circumstances are present in the instant case. The
police interrogation of the driver took place days after the
shooting occurred, and thus, there was no ongoing emergency.
The driver was questioned as a possible suspect himself at the
police station after agreeing to waive his Miranda rights. The
purpose of the interview was to gain information as to who
was involved in the shooting, information potentially relevant
to later prosecution of those involved. The driver’s statements
are therefore testimonial and admissible at trial only if he was
unavailable as a witness and there had been a prior opportunity
for cross-examination.
It is undisputed that the driver was unavailable as a witness
at trial under § 27-804(1)(b). However, Hickey had no prior
opportunity to cross-examine the driver, because the driver’s
statements were made during a police interrogation, at which
Hickey was not present, and the driver was not otherwise sub-
jected to cross-examination at a pretrial deposition or hearing.
Therefore, as Hickey argues and the State concedes, the dis-
trict court erred in admitting the driver’s statements into evi-
dence at trial because doing so violated Hickey’s rights under
the Confrontation Clause. Based on this finding, we need not
address whether the driver’s statements were also inadmis-
sible hearsay.
[5,6] Our inquiry does not end here, however, because
Confrontation Clause violations are subject to harmless error
analysis. See State v. Hood, 301 Neb. 207, 917 N.W.2d 880
(2018). See, also, Delaware v. Van Arsdall, 475 U.S. 673,
106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Our harmless error
jurisprudence recognizes that not all trial errors, even those of
constitutional magnitude, entitle a criminal defendant to the
reversal of an adverse trial result. State v. Hood, supra. It is
only prejudicial error, that is, error which cannot be said to be
harmless beyond a reasonable doubt, which requires a reversal.
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Id. When determining whether an alleged error is so prejudi-
cial as to justify reversal, courts generally consider whether
the error, in light of the totality of the record, influenced the
outcome of the case. Id.
[7] Generally, the erroneous admission of evidence is not
reversible error if the evidence is cumulative and other relevant
evidence, properly admitted, supports the finding of the trier of
fact. State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014).
Cumulative evidence means evidence tending to prove the
same point of which other evidence has been offered. Id.
Even in circumstances where erroneously admitted evi-
dence is cumulative of other properly admitted evidence, the
Nebraska Supreme Court has recognized the differing weight
a witness’ testimony may have depending upon his or her rela-
tionship with the party against whom he or she is testifying.
See Simon v. Drake, 285 Neb. 784, 829 N.W.2d 686 (2013).
In Simon v. Drake, a medical malpractice action, the defendant
was allowed to elicit testimony from one of the plaintiff’s
treating physicians that the needle size used by the defendant
was within the range of the proper needle size for the proce-
dure at issue. The treating physician had not been designated
as an expert. The trial court found this to be harmless error,
and on appeal, this court agreed.
Upon further review, the Nebraska Supreme Court reversed.
It reasoned that the treating physician’s testimony was not
substantially similar to the testimony of the parties’ desig-
nated experts because “[c]ompared to the testimony of a hired
expert, a juror was likely to give great weight to [the treating
physician’s] opinion because he was [the plaintiff’s] treating
physician and testifying as an expert against his own patient.”
Id. at 794, 829 N.W.2d at 693. The court went on to explain
that the relationship between a patient and a treating physician
was one of confidence and trust and that therefore, the jury
would have given significant weight to that testimony. The
court stated that it could not conclude that the weight the jury
likely would have given to the treating physician’s opinions
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was not the “tipping point” for finding in favor of the defend­
ant, especially since the defendant’s only expert conceded
he would have used a different needle size. Id. at 796, 829
N.W.2d at 694.
In the present case, the driver’s statements were cumulative
of the testimony by Hubka and Berry in the sense that these
three witnesses all identified Hickey as the shooter. The dif-
ference is that Hubka and Berry identified Hickey by observ-
ing the surveillance video and rendering their opinions that
the person depicted in the video was Hickey. In contrast, the
driver was present at the scene when the shooting occurred and
was driving the vehicle from which the shooter emerged. His
testimony was based on his firsthand observation of the shoot-
ing, as opposed to making an identification on the video, and
he was the only witness who claimed to have personally seen
Hickey at the scene of the shooting. Additionally, given that
the shooter emerged from the driver’s vehicle, the driver had,
at a minimum, a personal relationship with the shooter and
was implicating someone with whom he was friendly, facts to
which the jury would likely give significant weight.
The U.S. Supreme Court has similarly declined to find the
erroneous admission of testimony, even when cumulative, was
harmless when such testimony addressed the only factual issue
in the case. In Hawkins v. United States, 358 U.S. 74, 79 S. Ct.
136, 3 L. Ed. 2d 125 (1958), the U.S. Supreme Court reversed
the petitioner’s conviction for transporting a woman between
states for the purpose of prostitution, holding that the district
court erred by allowing the government to use the petitioner’s
wife as a witness against him. The Supreme Court noted that
the wife’s testimony supported the government on “the only
factual issue in the case,” which was whether the petitioner’s
dominant purpose in making the trip was to facilitate the wom-
an’s practice of prostitution. Id., 358 U.S. at 79. The govern-
ment urged the Supreme Court to find that the error was harm-
less, but the Court declined to do so, stating that “we cannot
be sure that [the wife’s testimony,] though in part cumulative,
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did not tip the scales against petitioner on the close and vital
issue of whether his prime motivation in making the interstate
trip” was to facilitate prostitution. Id., 358 U.S. at 80.
Likewise in the instant case, we cannot say that the driver’s
statements were not the “tipping point” for the jury finding
that Hickey was the shooter, particularly given that the only
issue for the jury to decide was whether Hickey was the per-
son depicted in the video committing the crime, and the shoot-
er’s identity is not entirely clear from the video. Although
Hubka and Berry offered their opinions that Hickey was the
shooter based on their observation of the video and familiar-
ity with Hickey, the driver of the white car was the only wit-
ness present at the scene who placed Hickey at the scene as
well. Accordingly, we conclude that the State failed to prove
beyond a reasonable doubt that the admission of the driv-
er’s statements was harmless error, and we therefore reverse
the convictions.
Lay Witness Opinion.
Although the foregoing determination resolves this appeal,
we nonetheless consider other assignments of error present-
ing issues which are likely to reoccur in the new trial we
must order, as further explained below. See State v. Edwards,
286 Neb. 404, 837 N.W.2d 81 (2013) (appellate court may,
at its discretion, discuss issues unnecessary to disposition
of appeal where those issues are likely to recur during fur-
ther proceedings).
Hickey asserts that the district court erred in allowing
Hubka and Berry to identify him on the surveillance video. He
claims that such identification invaded the province of the jury
and was an improper lay witness opinion. We find no error in
the admission of this testimony.
[8] Under Neb. Rev. Stat. § 27-701 (Reissue 2016), if the
witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is rationally based on the
perception of the witness and helpful to a clear understanding
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of his or her testimony or the determination of a fact in issue.
“The ‘“ultimate issue”’ rule was an evidentiary rule in many
jurisdictions that prohibited witnesses from giving opinions
or conclusions on an ultimate fact in issue because such testi-
mony, it was believed, ‘“usurps the function” or “invades the
province” of the jury.’” State v. Rocha, 295 Neb. 716, 732,
890 N.W.2d 178, 194 (2017). The ultimate issue rule was
abolished in Nebraska by Neb. Rev. Stat. § 27-704 (Reissue
2016), which provides that testimony in the form of an opinion
or inference otherwise admissible is not objectionable because
it embraces an ultimate issue to be decided by the trier of fact.
State v. Rocha, supra. Under § 27-704, the basic approach to
opinions, lay and expert, is to admit them when helpful to
the trier of fact. State v. Rocha, supra. But the abolition of
the ultimate issue rule does not lower the bar so as to admit
all opinions, because under § 27-701 and Neb. Rev. Stat.
§ 27-702 (Reissue 2016), opinion testimony, whether by a lay
or expert witness, is permissible only if it is helpful to the trier
of fact in making a determination of a fact in issue. See State
v. Rocha, supra.
Because Nebraska has abolished the ultimate issue rule, the
opinion testimony of Hubka and Berry was not inadmissible
because it invaded the province of the jury. However, we must
decide whether such testimony was “otherwise admissible”
under § 27-704, or in other words, whether the testimony was
properly admitted as lay witness opinion testimony pursuant to
§ 27-701. Nebraska has essentially adopted Fed. R. Evid. 701
and 702. See State v. Rocha, supra. We therefore look to the
federal courts, which apply federal rules 701 and 702.
The U.S. Court of Appeals for the Eighth Circuit has said
that “‘[u]nder Federal Rule of Evidence 701, “[a] witness’s
opinion concerning the identity of a person depicted in a sur-
veillance photograph is admissible if there is some basis for
concluding that the witness is more likely to correctly iden-
tify the defendant from the photograph than is the jury.”’”
U.S. v. Sanchez, 789 F.3d 827, 837 (8th Cir. 2015). Relevant
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considerations include whether the witness was familiar with
the defendant’s appearance around the time that the surveil-
lance photograph was taken and whether the surveillance pho-
tograph made it difficult for the jury to make a positive iden-
tification of the defendant. Id. In Sanchez, a special agent of
the U.S. Drug Enforcement Administration set up a controlled
buy of drugs from the defendant and video recorded the trans-
action. At trial, the agent involved identified the defendant
on the video, and the defendant objected to the identification,
which the trial court overruled. On appeal, the Eighth Circuit
held that given the relatively low quality of the footage and
the agent’s extensive surveillance of the defendant during and
around the time of the controlled buy, it was clear that the
agent was more likely to correctly identify the defendant from
the footage than was the jury. Therefore, it held that the trial
court did not abuse its discretion in allowing the testimony to
identify the persons depicted in the video footage.
Similarly, in U.S. v. Anderson, 783 F.3d 727 (8th Cir. 2015),
agents with the Bureau of Alcohol, Tobacco, Firearms and
Explosives investigated an explosion and fire at a restaurant.
The investigation focused on identifying individuals depicted
in surveillance videos from the restaurant and determining
their roles in the scheme. After receiving information that
led to identifying one of the three defendants in the case, a
bureau agent installed a pole camera outside of that defend­
ant’s residence, which was in place for approximately 2 years.
In reviewing the footage from this camera, the agent became
familiar with the appearance of that defendant, as well as his
vehicle, and observed another defendant visit him on several
occasions. At trial, the agent identified those two defendants
in the surveillance video from the restaurant. On appeal,
the defendants acknowledged that they did not object to the
identification at trial. In reviewing for plain error, the Eighth
Circuit found none, noting that the agent’s observations of the
defendants was much closer in time than the jury’s observa-
tions more than 4 years after the fire, and the agent was very
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familiar with the appearance of each defendant after review-
ing surveillance footage of them from the pole camera. The
court also noted that the fact that the surveillance footage in
which the agent identified the defendants captured events that
occurred at night further bolstered the helpfulness of his iden-
tification testimony.
The federal courts focus on the “helpfulness” requirement of
federal rule 701, finding that it is satisfied as to lay opinions
of video or photographic evidence only where the witness is
better able to observe, understand, or interpret the contents of
the video or photograph than the jury; this principle is well-
settled under federal appellate jurisprudence. See, e.g., U.S. v.
Fulton, 837 F.3d 281 (3d Cir. 2016); U.S. v. Houston, 813 F.3d
282 (6th Cir. 2016); U.S. v. Mendiola, 707 F.3d 735 (7th Cir.
2013); U.S. v. Rodríguez-Adorno, 695 F.3d 32 (1st Cir. 2012);
U.S. v. Contreras, 536 F.3d 1167 (10th Cir. 2008); U.S. v.
Pierce, 136 F.3d 770 (11th Cir. 1998); Young v. U.S., 111 A.3d
13 (D.C. 2015).
In most jurisdictions, a showing of sustained contact and/
or special knowledge of the defendant is not a prerequisite to
a lay witness’ giving identification testimony, but, rather, the
witness need only have sufficient contact with the defendant
to achieve a level of familiarity that renders the lay opinion
helpful. See, e.g., U.S. v. Holmes, 229 F.3d 782 (9th Cir.
2000). This is because, as the 10th Circuit recognized in U.S.
v. Contreras, supra, a witness’ familiarity with the defendant
offers the jury a more sophisticated identification than it could
make on its own, and in that case, because the witness had
repeated interactions with the defendant, she could identify
him based on many factors that would not be apparent to a jury
viewing the defendant only in a courtroom setting. The 10th
Circuit specifically observed that
“testimony by those who knew defendants over a period
of time and in a variety of circumstances offers to the jury
a perspective it could not acquire in its limited exposure
to defendants. Human features develop in the mind’s eye
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over time. These witnesses had interacted with defend­
ants in a way the jury could not, and in natural settings
that gave them a greater appreciation of defendants’ nor-
mal appearance. Thus, their testimony provided the jury
with the opinion of those whose exposure was not limited
to three days in a sterile courtroom setting.”
Id. at 1170-71.
In the present case, the district court did not abuse its
discretion in concluding that the officers’ identifications of
Hickey on the video were helpful to the jury based on the
officers’ history with Hickey and familiarity with him, as
well as the quality of the video. Although the jury viewed
the video of the shooting, the shooter’s face is not readily
identifiable, and thus, lay witness opinion testimony would
be helpful to the jury to identify the shooter. Hubka explained
that prior to the day of the shooting, he had known Hickey
for approximately 14 months, met him “ten plus times,” and
had “talked to him face to face numerous times.” He had
also observed Hickey on social media. He explained that
he has had extended in-person conversations with Hickey
and was familiar with his voice, body, height, weight, walk,
hairstyle, family, and acquaintances. Hubka was able to iden-
tify Hickey’s facial features at a certain point in the video
and also recognized him by the way he moved; his clothing,
height, weight, and build; his earring; the way his hair was
styled; and the other people in the video. He testified that
“within seconds” of viewing the video, he identified Hickey
as the shooter.
Likewise, Berry testified that he had been familiar with
Hickey for approximately 3 years before the shooting. He has
observed Hickey on social media, including in photographs
and videos. He explained that he has met Hickey in person on
more than one occasion and was familiar with his voice, walk
and movement, clothing, hairstyle, family, and associates.
Upon viewing the video, Berry was able to identify Hickey
“pretty quickly” because of his familiarity with him and the
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other people depicted in the video. Given the officers’ history
and familiarity with Hickey, their ability to readily identify
him on the video, and the fact that the video was recorded at
night and is not entirely clear, we find that allowing Hubka
and Berry to identify Hickey as the shooter in the video was
not an abuse of discretion.
[9,10] To the extent Hickey argues that the opinion testi-
mony also violated the best evidence rule, we do not agree.
“Under what is commonly and incorrectly referred to as the
‘best evidence rule,’ in order to prove the content of a writing,
recording, or photograph, the original writing, recording, or
photograph is required.” State v. Savage, 301 Neb. 873, 888,
920 N.W.2d 692, 705 (2018). This “‘“original writings” rule’”
applies only if the party offering the evidence is seeking to
prove the contents of a writing, recording, or photograph. Id.
Under Neb. Rev. Stat. § 27-1001(3) (Reissue 2016), defining
an original under the rule, if data is stored in a computer or
similar device, any printout or other output readable by sight,
shown to reflect the data accurately, is an original. State v.
Savage, supra.
Identifying physical characteristics do not constitute the
content of a communication, and thus, the officers’ identifica-
tion of individuals depicted in the video had no role in proving
the content of the recording. See U.S. v. Mendiola, 707 F.3d
735 (7th Cir. 2013). Accordingly, allowing the officers’ opin-
ion testimony did not violate the best evidence rule.
Unconstitutional Special
Legislation.
[11] Hickey contends that § 28-1212.04, the statute crimi-
nalizing the discharge of a firearm near a vehicle or build-
ing, is unconstitutional special legislation. However, Hickey
did not file notice of a constitutional question as required by
Neb. Ct. R. App. P. § 2-109(E) (rev. 2014). Section 2-109(E)
requires that a party presenting a case involving the federal or
state constitutionality of a statute must file and serve notice
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thereof with the Supreme Court Clerk by a separate written
notice or by notice in a petition to bypass at the time of fil-
ing such party’s brief. See State v. Epp, 299 Neb. 703, 910
N.W.2d 91 (2018). Strict compliance with § 2-109(E) is neces-
sary whenever a litigant challenges the constitutionality of a
statute, regardless of how that constitutional challenge may
be characterized. Id. Because Hickey did not comply with
§ 2-109(E), we decline to address this argument.
Double Jeopardy.
[12,13] Having found reversible error in the admission of
the driver’s statements, we must determine whether the total-
ity of the evidence admitted by the district court was sufficient
to sustain Hickey’s convictions. Upon finding reversible error
in a criminal trial, an appellate court must determine whether
the total evidence admitted by the district court, erroneously
or not, was sufficient to sustain a guilty verdict. State v.
Draper, 289 Neb. 777, 857 N.W.2d 334 (2015). If it was not,
then double jeopardy forbids a remand for a new trial. Id.
After reviewing the record, we find that the evidence pre-
sented at trial, including the erroneously admitted evidence,
was sufficient to support Hickey’s convictions. Accordingly,
we conclude that double jeopardy does not preclude a
new trial.
Remaining Assignments
of Error.
Because we have reversed Hickey’s convictions, we need
not reach his assigned errors regarding the denial of several
proposed jury instructions. These issues are either not likely
to recur on remand or must be evaluated in the context of a
particular trial, and therefore, review of the court’s rulings in
this trial would not necessarily determine how the court should
rule in a new trial. See State v. Abram, 284 Neb. 55, 815
N.W.2d 897 (2012). We therefore do not consider Hickey’s
remaining assignments of error.
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CONCLUSION
We conclude that the district court’s admission of the driv-
er’s statements into evidence at trial was prejudicial error. As
a result, we reverse the convictions and remand the cause to
the district court for a new trial.
R eversed and remanded for a new trial.