State v. Britt

Section 32-624 and Neb. Rev. Stat. § 32-801 (Reissue 2008)
are such statutes. As stated in the affidavit of the Secretary
of State, attached to his response to this court’s order to
show cause,
[i]n reliance on Neb. Rev. Stat. § 32-624, and on the
Order of the District Court for Lancaster County entered
March 21, 2012, [he] began certification of the May 15,
2012 primary election ballot at approximately noon on
Thursday, March 22, and completed the process of ballot
certification on that same day for all 93 Nebraska coun-
ties at approximately 1:30 p.m.
That certification duty is imposed upon the Secretary of State
by § 32-801, and no one asserts he should disregard that statu-
tory obligation.
Thus, for the reasons stated above, this court determines that
under the statutory procedure established by the Legislature,
it lacks authority to grant the relief sought by appellant. This
appeal is therefore dismissed.
A ppeAl dismissed.
Wright and stephAn, JJ., not participating.
stAte of nebrAskA, Appellee , v.
tyler W. britt, AppellAnt.
813 N.W.2d 434
Filed March 30, 2012. 	No. S-10-998.
1. Constitutional Law: Appeal and Error. An appellate court reviews de novo a
trial court’s determination of the protections afforded by the Confrontation Clause
and reviews the underlying factual determinations for clear error.
2. Constitutional Law: Hearsay. 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.
3. ____: ____. Statements that are nontestimonial can be admitted without further
Confrontation Clause analysis.
4. ____: ____. The initial step in a Confrontation Clause analysis is to deter-
mine whether the statements at issue are testimonial in nature and subject to
a Confrontation Clause analysis. If the statements are nontestimonial, then no
further Confrontation Clause analysis is required.
600 	283 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

5. Appeal and Error. Consideration of plain error occurs at the discretion of an
appellate court.
petition for further review from the Court of Appeals,
inbody, Chief Judge, and sievers and moore, Judges, on
appeal thereto from the District Court for Dawson County,
JAmes e. doyle iv, Judge, on appeal thereto from the County
Court for Dawson County, CArlton e. C lArk , Judge. Judgment
of Court of Appeals affirmed.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
p.C., for appellant.
Jon bruning, Attorney General, and Nathan A. Liss for
appellee.
heAviCAn, C.J., Wright, C onnolly, stephAn, mCC ormACk ,
and miller-lermAn, JJ.
miller-lermAn, J.
NATURe OF CASe
Tyler W. britt was convicted in the county court for Dawson
County of first-offense driving under the influence with a con-
centration of more than .15 of 1 gram of alcohol per 210 liters
of breath. The district court for Dawson County affirmed the
conviction. On appeal, the Nebraska Court of Appeals con-
cluded, inter alia, that the admission of a certificate containing
a chemical analysis certification of the alcohol breath simulator
solution used to test the machine that was used to test britt’s
breath did not violate the Confrontation Clause and affirmed
the district court order. We granted britt’s petition for further
review. We affirm.
STATeMeNT OF FACTS
britt was charged on February 20, 2009, in the county court
with first-offense driving under the influence over .15 stem-
ming from events occurring on February 13. prior to trial, britt
filed a second motion in limine asking the court to prohibit the
State from offering into evidence the results of any chemical
test unless the person who prepared the breath simulator solu-
tion which was used to calibrate the breath testing device was
STATe v. bRITT 	601
Cite as 283 Neb. 600

available for cross-examination. britt relied on Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. ed.
2d 314 (2009), in support of his assertion that admission of
a certificate regarding such matter would violate his right of
confrontation. The State argued at a hearing on the motion in
limine that a certificate signed by Cecil b. Garner, the person
who prepared the known breath simulator solution used to
test the device that was used to test britt’s breath, was admis-
sible, because in State v. Fischer, 272 Neb. 963, 726 N.W.2d
176 (2007), we held that such certificate was nontestimonial
and not prepared for the purpose of trial and that therefore, it
was not subject to the Confrontation Clause. The county court
denied britt’s motion in limine.
britt renewed his motion in limine at the start of trial and
made a continuing objection based on the motion. He specifi-
cally objected to exhibits 16 and 18. exhibit 16 is a report of
a 190-day check of the breath testing device. exhibit 18 is a
certificate sworn to by Garner on August 7, 2008, certifying
the analysis of the solution prepared on the same date. It is
entitled “Chemical Analysis Certification of Alcohol breath
Simulator Solution.” This solution was later used to test the
device. The county court admitted both exhibits over britt’s
objections based on hearsay and confrontation. The jury found
britt guilty.
After sentencing, britt appealed the county court judgment
to the district court. britt asserted on appeal to the district
court that the county court erred when it, inter alia, denied his
motion in limine and admitted exhibits 16 and 18, in violation
of his confrontation rights. britt did not assert error based on
his hearsay objections. The district court concluded that, even
taking into consideration Melendez-Diaz, supra, which was
decided in 2009, our opinion in Fischer, supra, filed in 2007,
“remains good law.” The district court rejected britt’s argu-
ments and affirmed his conviction and sentence on September
14, 2010.
britt appealed the affirmance to the Court of Appeals. He
assigned error to, inter alia, the district court’s determination
that Garner’s certificate was not testimonial and that therefore,
britt did not have a right to confront and cross-examine Garner.
602 	283 NebRASkA RepORTS

britt also asserted that the county court erred when it con-
cluded that exhibits 16 and 18 were not inadmissible hearsay.
The Court of Appeals rejected britt’s assignments of error and
affirmed the district court’s order affirming his conviction and
sentence. State v. Britt, No. A-10-998, 2011 WL 4388224 (Neb.
App. Sept. 13, 2011) (selected for posting to court Web site).
britt does not assign error in his petition for further review of
the Court of Appeals’ ruling on any issue other than his con-
frontation and hearsay objections to Garner’s certificate, and
therefore no other issues are discussed herein.
We granted britt’s petition for further review.
ASSIGNMeNTS OF eRROR
britt claims on further review that the Court of Appeals
erred when it (1) concluded that Garner’s certificate was not
testimonial in nature and (2) failed to conclude that plain error
occurred when the county court admitted the certificate over
his hearsay objection.
STANDARDS OF ReVIeW
[1] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause and reviews the underlying factual determinations
for clear error. State v. Banks, 278 Neb. 342, 771 N.W.2d
75 (2009).
ANALYSIS
The Court of Appeals Did Not Err When It Concluded That
the Certificate Was Not Testimonial and Therefore
Not Subject to the Confrontation Clause.
britt first claims that the Court of Appeals erred when it con-
cluded that Garner’s certificate was not testimonial in nature.
We conclude that, based on our holding in State v. Fischer,
272 Neb. 963, 726 N.W.2d 176 (2007), which holding was not
abrogated by subsequent case law, the Court of Appeals did not
err in its determination that the certificate was not testimonial
and therefore not subject to confrontation analysis.
[2-4] The Confrontation Clause, U.S. Const. amend. VI,
provides, in relevant part: “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
STATe v. bRITT 	603
Cite as 283 Neb. 600

witnesses against him . . . .” In Crawford v. Washington, 541
U.S. 36, 61, 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. Later, in Davis v. Washington, 547 U.S.
813, 126 S. Ct. 2266, 165 L. ed. 2d 224 (2006), the Court
determined that statements that were nontestimonial could be
admitted without further Confrontation Clause analysis. We
have therefore stated that the initial step in our Confrontation
Clause analysis is to determine whether the statements at
issue are testimonial in nature and subject to a Confrontation
Clause analysis. Fischer, supra. If the statements are non-
testimonial, then no further Confrontation Clause analysis is
required. Id.
As the Court of Appeals noted, Fischer involved “the same
issue and virtually the same facts” as in the present case. Britt,
2011 WL 4388224 at *4. Fischer was filed in 2007. In Fischer,
after reviewing existing precedent regarding the meaning of
testimonial for Confrontation Clause purposes, we concluded
that a certificate verifying the concentration of simulator solu-
tion was not testimonial in nature and therefore not subject to
confrontation analysis. We noted that the statements in the cer-
tificate did not occur in the context of structured police ques-
tioning and did not pertain to any particular pending matter. We
further noted that the primary purpose of the certification was
to ensure that a solution used to calibrate breath testing devices
was of the proper concentration and that such certification was
required for administrative reasons regardless of whether the
certificate would later be used in a criminal proceeding. We
reasoned that the certificate did not pertain to any particu-
lar pending criminal matter and was too attenuated from the
prosecution of charges against the defendant to be considered
testimonial in the sense required under Crawford, supra; Davis,
supra; and the Confrontation Clause. Fischer, supra.
britt argues that Melendez-Diaz v. Massachusetts, 557 U.S.
305, 129 S. Ct. 2527, 174 L. ed. 2d 314 (2009), requires
a different result from that in Fischer. We do not agree.
604 	283 NebRASkA RepORTS

Melendez-Diaz involved a prosecution for distribution and traf-
ficking in cocaine. In Melendez-Diaz, the U.S. Supreme Court
concluded that certificates containing the results of forensic
analyses of a seized substance showing that the substance was
cocaine were testimonial in nature and that the analysts who
made the certificates used to establish the results were wit-
nesses for Confrontation Clause purposes and thus required
to be present. The Court reasoned that the certificates were
prepared under circumstances such that it was reasonably
understood they would be used at a later trial and that the sole
purpose of the certificates was to provide evidence for the iden-
tified prosecution. The Court made it clear that not all testing-
related evidence is testimonial. In a footnote in Melendez-Diaz,
the Court stated:
[W]e do not hold, and it is not the case, that anyone whose
testimony may be relevant in establishing the . . . accuracy
of the testing device, must appear in person as part of the
prosecution’s case. . . . Additionally, documents prepared
in the regular course of equipment maintenance may well
qualify as nontestimonial records.
129 S. Ct. at 2532 n.1.
britt argues that the Court of Appeals erred when it focused
on the Melendez-Diaz footnote and erred when it concluded
that the certificate in this case was not testimonial. He notes
that another part of the same footnote stated that “what testi-
mony [regarding steps in the chain of custody] is introduced
must, ‘if the Appellant objects’, be introduced live.” brief on
petition for further review for appellant at 2. He argues that
the Garner certificate regarding the solution in the instant case
was testimony regarding “the chain of custody” and was there-
fore subject to confrontation analysis. Id. britt misconstrues
Melendez-Diaz, which involved forensic tests performed on a
seized substance, which tests determined that the substance
was cocaine. The substance being tested in Melendez-Diaz was
principal evidence for the prosecution, and therefore its chain
of custody was vital. We read the “chain of custody” comment
in footnote 1 in Melendez-Diaz as referring to principal evi-
dence sought to be introduced by the prosecution; it was not a
reference to evidence in general.
STATe v. bRITT 	605
Cite as 283 Neb. 600

We note that Bullcoming v. New Mexico, 564 U.S. 647, 131
S. Ct. 2705, 180 L. ed. 2d 610 (2011), is a case decided after
Melendez-Diaz. Bullcoming involved a prosecution for driv-
ing under the influence, and the principal evidence consisted
of a forensic laboratory report certifying that the defendant’s
blood alcohol concentration was above the legal limit. The
report was made specifically for the case, was intended to
substitute for testimony, and was critical evidence. The report
was deemed testimonial, and the Court concluded that the
defendant had a right to confront the analyst who made the
report. A concurring opinion refers favorably to footnote 1 in
Melendez-Diaz, discussed above, and again stresses that “it is
not the case ‘that anyone whose testimony may be relevant in
establishing the chain of custody . . . or accuracy of the test-
ing device, must appear in person as part of the prosecution’s
case . . . .’” 131 S. Ct. at 2721 n.2 (Sotomayor, J., concurring
in part).
In contrast to Melendez-Diaz v. Massachusetts, 557 U.S. 305,
129 S. Ct. 2527, 174 L. ed. 2d 314 (2009), and Bullcoming,
supra, in the instant case, the solution itself is not principal
evidence and its chain of custody is not at issue; instead, the
solution is merely used as part of the routine testing of the
accuracy of the breath testing device, and Garner’s certificate
merely concerns the concentration of the solution. The solu-
tion is not evidence of the crime; it was analyzed on August
7, 2008, which was more than 6 months before the complaint
was filed on February 20, 2009, charging a crime committed on
February 13, 2009. The language britt relies on from footnote
1 in Melendez-Diaz is not applicable. The Court of Appeals
correctly relied on the relevant language from the Melendez-
Diaz footnote regarding documents prepared in connection
with the accuracy of testing devices and properly concluded the
Garner certificate was not testimonial.
We agree with the Court of Appeals and the district court
in this case that Garner’s certificate was essentially identi-
cal to the certificate in State v. Fischer, 272 Neb. 963, 726
N.W.2d 176 (2007), and was not testimonial. The decisions in
Melendez-Diaz and Bullcoming did not abrogate our reason-
ing in Fischer. The certificate was not created in preparation
606 	283 NebRASkA RepORTS

for a trial and did not pertain to any particular pending matter.
Instead, it related to the maintenance process and accuracy of
the testing device to ensure that the solution used to calibrate
and test the breath testing device was of the proper concentra-
tion, and the certificate would have been prepared regardless of
whether or not it would later be used in a criminal proceeding.
The preparation of the certificate was too attenuated from the
prosecution of charges against britt to be considered testimo-
nial. We conclude that, like the certificate in Fischer, the cer-
tificate in this case was not testimonial.
britt asserts that if a defendant does not have a right to
examine the individual who prepared the certificate at trial,
then the defendant would never be able to challenge the accu-
racy of a certificate regarding the solution used to test a breath
testing device. We disagree. The confrontation analysis under
consideration relates to the evidentiary issue of whether the
certificate may be admitted as evidence in lieu of live testi-
mony. If the defendant has a basis to call the certificate into
question, the defendant could challenge the accuracy of the
certificate by presenting such evidence. The defendant could
depose the person who prepared the certificate in order to dis-
cover evidence to challenge its accuracy. The conclusion that
the certificate is not subject to Confrontation Clause analysis
does not necessarily prevent the defendant from challenging
the accuracy of the certificate.
We conclude that the Court of Appeals did not err when it
concluded that Garner’s certificate was not testimonial, and
therefore not subject to confrontation analysis, and affirmed
the district court’s decision to the same effect. We reject britt’s
assignment of error on further review.
The Court of Appeals Did Not Abuse Its Discretion When
It Did Not Find Plain Error in the Trial Court’s
Overruling Britt’s Hearsay Objection.
britt also claims that the Court of Appeals erred when it
failed to note plain error in the county court’s rejection of his
hearsay objection to the admission of the certificate. because
britt did not preserve the objection in his appeal to the district
court and because the hearsay issue is not encompassed by
STATe v. bRITT 	607
Cite as 283 Neb. 600

britt’s assignment of error regarding a Confrontation Clause
violation, we conclude that the Court of Appeals did not abuse
its discretion when it did not note plain error with regard to
britt’s hearsay objections.
The Court of Appeals noted that although britt made
hearsay objections to the admission of exhibits 16 and 18
at trial in the county court, he failed to assign error in the
overruling of his hearsay objections on appeal to the district
court. The district court therefore did not address the hearsay
issue. The Court of Appeals concluded that because the issue
had not been properly presented to and passed upon by the
district court, it could not be raised on appeal to the Court
of Appeals.
[5] britt argues that the certificate was clearly hearsay and
that it was clear no exception applied and that therefore, the
Court of Appeals should have noted such plain error. We have
stated that “[c]onsideration of plain error occurs at the discre-
tion of an appellate court.” State v. Young, 279 Neb. 602, 612,
780 N.W.2d 28, 37 (2010). because britt did not preserve the
hearsay issue by raising it on appeal to the district court, the
Court of Appeals was not required to consider the hearsay
issue, and we conclude that the Court of Appeals did not abuse
its discretion when it did not find plain error.
britt alternatively argues that he preserved the confronta-
tion issues and that because the hearsay analysis is a “first
cousin” to the confrontation analysis, he effectively preserved
the hearsay issue and the Court of Appeals should have con-
sidered his hearsay arguments on appeal. brief on petition
for further review for appellant at 8. We note that although
under Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L.
ed. 2d 597 (1980), and its progeny, there was a great deal of
overlap between confrontation analysis and hearsay analysis,
beginning with Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354, 158 L. ed. 2d 177 (2004), the U.S. Supreme Court
overruled Ohio v. Roberts and “divorced” the Confrontation
Clause from the hearsay rule. See Thomas J. Reed, Crawford
v. Washington and the Irretrievable Breakdown of a Union:
Separating the Confrontation Clause From the Hearsay Rule,
56 S.C. L. Rev. 185 (2004). because confrontation analysis
608 	283 NebRASkA RepORTS

and hearsay analysis are not the same, we conclude that britt’s
preserving the confrontation issue did not also preserve the
hearsay issue and that hearsay issues were not encompassed by
britt’s assignments of error regarding a purported confronta-
tion violation. The Court of Appeals did not err when it did not
consider britt’s hearsay arguments as plain error.
CONCLUSION
We conclude that the Court of Appeals did not err when
it determined that the certificate was not testimonial and not
subject to confrontation analysis. We further conclude that the
Court of Appeals did not abuse its discretion when it did not
note plain error with regard to britt’s hearsay objections. We
therefore affirm the decision of the Court of Appeals which
determined that the admission of the certificate was not error
and affirmed the decision of the district court which affirmed
britt’s conviction and sentence.
A ffirmed.
IN Re INTeReST OF SHALeIA M. 	609
Cite as 283 Neb. 609
in re interest of shAleiA m., A Child
under 18 yeArs of Age .
stAte of nebrAskA, Appellee , v. shAleiA m. And
JAne m. mCneil , guArdiAn Ad litem , Appellees ,
And nebrAskA depArtment of heAlth And
humAn serviCes , AppellAnt.
812 N.W.2d 277
Filed March 30, 2012. 	Nos. S-11-532, S-11-553.
1. Judgments: Justiciable Issues: Appeal and Error. Justiciability issues that do
not involve a factual dispute present a question of law, for which an appellate
court reaches a conclusion independent of the court below.
2. Moot Question: Appeal and Error. A case becomes moot when the issues ini-
tially presented in the litigation cease to exist, when the litigants lack a legally
cognizable interest in the outcome of litigation, or when the litigants seek to
determine a question which does not rest upon existing facts or rights, in which
the issues presented are no longer alive.
3. Courts: Judgments. In the absence of an actual case or controversy requiring
judicial resolution, it is not the function of the courts to render a judgment that is
merely advisory.