State v. Trice, 292 Neb. 482

Background

In 2010, Timothy Warren was fatally stabbed at a Norfolk, Nebraska party; De’Aris R. Trice was charged with second degree murder. After a first trial, this Court reversed for a faulty jury instruction and remanded for retrial. Trice waived a jury for the second (bench) trial.
At the second trial, two prior witnesses to the first trial (Robyn Baldwin and Ronald Trice) did not appear; the State sought admission of their prior-trial transcripts under the hearsay unavailability exception.
Additional contested evidence: (1) Guadalupe Reyes’ testimony recounting Jaron Hoard’s statement that “his friend got stabbed,” and (2) a recorded jail call in which Trice told his father he would plead not guilty and when asked whether by self-defense, replied “Yes sir.”
The trial court found Baldwin and Ronald unavailable under Neb. Rev. Stat. § 27-804(1)(e), admitted their prior-trial testimony, admitted Reyes’ testimony as a prior consistent statement (and Hoard also testified at trial), and admitted Trice’s reply in the jail call as an adoptive admission.
The bench convicted Trice of second degree murder and the court imposed 40 years to life (within the Class IB range). Trice appealed, raising hearsay/Confrontation Clause challenges and that the sentence was excessive.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Trice)	Held
Admission of Baldwin’s prior-trial testimony (unavailability)	Baldwin was personally served with a subpoena ~1 month before trial; service is a sufficient good-faith effort to procure attendance.	Service alone was insufficient; the State should have sought a bench warrant or taken further steps after she failed to appear.	Court: No abuse of discretion; personal service was a reasonable pretrial effort and court need not require exhaustion of further steps before finding unavailability.
Admission of Ronald’s prior-trial testimony (unavailability)	State coordinated with out-of-state authorities, reissued process after clerical error, pursued investigators in Chicago, and had reason to believe Ronald was avoiding service — sufficient diligence.	State failed to locate or serve Ronald; efforts were insufficient to show unavailability.	Court: No abuse of discretion; prosecution showed reasonably diligent, good-faith efforts to locate and compel Ronald.
Reyes’ testimony recounting Hoard’s statement	Statement admissible as prior consistent statement (or alternatively as excited utterance).	Statement was hearsay; prior consistent-statement requirements not met.	Court: Any error admitting Reyes’ repetition was harmless beyond a reasonable doubt because Hoard directly testified to the same statement (cumulative evidence).
Admission of jail-call transcript (father’s question / Trice’s reply)	Trice’s “Yes sir” in response to father’s question is an adoptive admission (manifestation of belief in truth) and therefore nonhearsay.	Father’s question/statement is hearsay and admission of the transcript violated hearsay and Confrontation protections (not raised at trial).	Court: Admission proper as adoptive admission under § 27-801(4)(b); Confrontation claim not preserved and not plain error.
Excessive sentence (40 years to life)	N/A (State recommended possible increase but court kept same sentence).	Sentence is excessive given Trice’s age, learning disability, limited adult criminal history.	Court: Sentence within statutory range and court properly considered relevant sentencing factors; no abuse of discretion.

Key Cases Cited

State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011) (governing interplay of murder and manslaughter instructions)
State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013) (this Court’s prior reversal remanding for retrial)
State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012) (standard of review and hearsay/unavailability principles)
State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998) (evidence required to show diligence locating absent witness)
Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953) (prosecution must show diligence and offer evidence of attempts to serve subpoenas)
State v. Williams, 211 Neb. 693, 320 N.W.2d 105 (1982) (diligent efforts to locate a moved witness may satisfy unavailability)
Ohio v. Roberts, 448 U.S. 56 (1980) (reasonableness/length of prosecution efforts to produce witness relevant to hearsay admissibility)