Omaha City Attorney wins domestic assault conviction without victim’s testimony

State v. Hembertt, 269 Neb. 840 Filed May 20, 2005. No. S-04-1124.

The Douglas County Court convicted David Hembertt of municipal assault and battery, sentencing him to 90 days jail (Omaha Mun. Code, ch. 20, art. IV, § 20-61 (1980). The principal evidence against him was the “excited utterances” from the alleged victim who 3-5 minutes after another citizen made a police call told the police where the defendant was and what had happened. According to the Nebraska Supreme Court opinion:

“(The Omaha Police officer) testified at trial that the woman was, “crying hysterical, trembling. She began to identify herself as the — as the residence — resident there and that she had — that she had been assaulted.” The woman went directly to the man who had made the emergency call, “crying and pointing to the house saying . . . he’s inside. He’s upstairs.” The officer testified that he observed bruises on the woman’s face and body.

The Officer testified that before police asked any questions, the woman “began to explain the story that he had been attacking her, head butting her and that he had threatened her with a knife.” The woman explained, “they had gotten into an argument. That he was somewhat accusing her of sleeping with another man. And as a result he started to beat her, head butted her I believe she said, threw her across a counter and up against the wall and threatened her with a knife.” The woman said the incident had happened “[m]oments prior to [the officers’] arrival.”

The Nebraska Supreme Court ultimately holds that the above victim statements qualified as “excited utterances” according to § 27-803(1) (Cum. Supp. 2004). 27-803(1) provides that an available declarant’s hearsay statements may be admissible when they “(relate) to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The Defendant DID NOT contest that the statements qualified as 27-803(1) excited utterances.

The Defendant challenged admission of the statements as violating his confrontation clause rights under US Constitution Amendment VI and Nebraska Constitution, Article 1 Section 11. Although our state constitution words the confrontation clause differently from the Federal Constitution, the State’s is nevertheless co-extensive with the Federal’s.

Under the reformulated confrontation clause rule from Crawford v. Washington 541 U.S. 36, 2004, otherwise admissible out of court statements may be admitted only when they are not “testimonial” in nature. The Supreme Court holds the statements described above met this standard. The University of Denver Law School created this helpful table on Crawford-hearsay hypothetical resolutions. You are treading into dangerous territory however when you start excusing the presence of victims in court for domestic situations, as there are two sides to every story.