State v. Ballew, 291 Neb. 577

Background

Defendant Joshua D. Ballew was tried for stabbing two victims (Marshall Mock and Tyler Waddell) at a March 2012 party and was convicted on six counts: two counts of first-degree assault, two counts of second-degree assault, and two counts for use of a deadly weapon (one set per victim).
The information initially pleaded multiple alternative theories for second-degree assault; the State amended during trial so the second-degree counts rested solely on § 28-309(1)(a) (intentionally or knowingly causing bodily injury with a dangerous instrument).
Key eyewitnesses (the two victims plus two others) identified Ballew at trial; defense sought to impeach those identifications with statements the witnesses made shortly after the incident to police and with a photographic-lineup history.
The trial court sustained State objections to defense questioning of witnesses/officers on the basis of hearsay or improper impeachment; the excluded topics included whether early statements mentioned tattoos and what identifications were made from a photo lineup.
After conviction, Ballew moved for a new trial arguing (1) double jeopardy barred convictions for both first- and second-degree assault as to each victim, and (2) evidentiary exclusions violated his rights to present a complete defense and to confront witnesses. The district court denied the motion and imposed concurrent/consecutive sentences; Ballew appealed.

Issues

Issue	Plaintiff's Argument (Ballew)	Defendant's Argument (State)	Held
Whether convictions for both 1st-degree assault (§ 28-308) and 2nd-degree assault (§ 28-309(1)(a)) for the same act violate double jeopardy	Convicting and sentencing him for both degrees arising from the same act produces multiple punishments for the same offense in violation of double jeopardy and statutory scheme (§ 29-2025)	The statutes have distinct elements (serious bodily injury vs. use of a dangerous instrument); under Blockburger the offenses are separate so cumulative punishment is permitted	Affirmed: Blockburger same-elements test applies; § 28-308 and § 28-309(1)(a) each require an element the other does not, so double jeopardy does not bar separate convictions/sentences
Whether trial court erred in excluding prior out-of-court descriptions (police reports) as improper impeachment when used to impeach Waddell	Early statements that omitted tattoos or described different clothing were prior inconsistent statements admissible to impeach credibility	The omissions/statements were not necessarily inconsistent (reports may be incomplete), and admission would be hearsay or improper extrinsic impeachment	Affirmed: trial court did not abuse discretion; prior statements were not sufficiently inconsistent or admissible impeachment evidence
Whether trial court erred in excluding officer testimony about what witnesses told them (Luce/Tucker) as hearsay when offered to impeach	Officer testimony recounting witness statements was non-hearsay when offered solely for impeachment; exclusion violated confrontation/compulsory-process rights	Court properly excluded because the proffered officer testimony sought to prove identification/descriptive facts and was hearsay or cumulative; defendant had other cross-examination opportunities	Affirmed: exclusion was within trial court discretion and did not violate confrontation or due process rights; any error was not materially prejudicial
Whether cumulative exclusion of impeachment evidence required a new trial (constitutional claim)	Excluding impeachment evidence prevented a meaningful opportunity to present a defense and deprived effective confrontation; error was not harmless given credibility disputes	The defense could cross-examine witnesses on key points; excluded evidence was inadmissible under the rules, so constitutional rights were not violated	Affirmed: no constitutional violation; defendant had a meaningful opportunity to present a defense and cross-examine witnesses

Key Cases Cited

Blockburger v. United States, 284 U.S. 299 (same-elements test for double jeopardy)
Albernaz v. United States, 450 U.S. 333 (Blockburger is a statutory-construction tool and yields to clear legislative intent)
Whalen v. United States, 445 U.S. 684 (assumption that separately codified statutes suggest separate offenses unless contrary legislative intent)
State v. Billups, 209 Neb. 737 (Nebraska precedents treating first- and second-degree assault as distinct for some purposes)
State v. Van, 268 Neb. 814 (affirming consecutive sentences where offenses arose in separate transactions)
State v. Miner, 273 Neb. 837 (Legislature can declare related statutes a single offense, making Blockburger unnecessary)
State v. Huff, 282 Neb. 78 (Nebraska discussion of double jeopardy and Blockburger application)
State v. Rodriguez, 272 Neb. 930 (prior inconsistent statements admissible for impeachment under Nebraska law)