Because the State provided no reason why the defendant's identity would be reasonably pertinent to Deidre's diagnosis and treatment and because Settje suggested that it was not, we conclude that Settje's recitation contained inadmissible hearsay. If this testimony is introduced on retrial, it should be excluded as hearsay, not within an exception, unless the defendant's identity is redacted or the State demonstrates that the defendant's identity is reasonably pertinent to Deidre's diagnosis and treatment.Case reversed for a new trial on all counts.
Friday, January 06, 2006
"The prosecutor's misrepresentations struck a foul blow." Nebraska Supreme Court reverses domestic violence conviction when prosecutor mischaracterized defense counsel's argument (or lack of one)Bonus: a lesson in 17th century literature too! State v. Beeder, 270 Neb. 799 Filed January 6, 2006. Nos. S-03-1205, S-04-1115 In a case of a prosecutor's possibly excessive zeal to convict a wife/girlfriend abuser, the Nebraska Supreme Court reverses convictions for 3rd degree assault false imprisonment and habitual offender where prosecutor repeatedly mischaracterized defense counsel's closing argument. Defense counsel asked jury on closing argument to consider the evidence but did not offer anything like an argument against conviction on the assault charge. The prosecutor finished her closing argument, and the defense moved for a mistrial. Then the prosecutor repeated the prejudical statements on rebuttal, when the Defendant could not respond. Also Court restricts evidence from physician examining the victim to prevent hearsay identification of the defendant through medical statements Waxing poetic, but noting a 1962 case Justice Connolly emphasizes the courts displeasure with the prosecutor's performance in this trial: When a prosecutor persists after the court advises that an action is not permitted, the prosecutor commits misconduct. See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998) (repeating improper question even though court sustained defendant's objection). Here, not once, but twice, the prosecutor said that Beeder's counsel agreed that the evidence clearly showed he was guilty of third degree assault. Although the court ..told the jurors they could make up their own minds, This emboldened the prosecutor, who repeated the misrepresentation. .. The prosecutor's repeated misrepresentation misled the jury..Further, the trial court's admonition left the jurors to ponder why they were free to make up their minds about the first statement, but not the second. .. "'If we treat violations indulgently, we shall soon -- in the words of [Alexander] Pope -- "first endure, then pity, then embrace."'" Pierce v. State, 173 Neb. 319, 330, 113 N.W.2d 333, 341 (1962). Supreme Court rules that on retrial, State may not use physicians hearsay to identify the defendant as the perpetrator, as Def's identity is not pertintent to medical care, 27-803(3)
Posted by stan_sipple at 2:12 PM