State v. Sorensen

State of NebraSka , appellee , v.
C had N. SoreNSeN, appellaNt.
814 N.W.2d 371
Filed May 25, 2012. 	No. S-11-597.
1. Constitutional Law: Witnesses: Appeal and Error. An appellate court
reviews de novo a trial court’s determination of the protections afforded by
the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and
reviews the underlying factual determinations for clear error.
2. ____: ____: ____. The Sixth Amendment to the U.S. Constitution guarantees the
right of an accused in a criminal prosecution to be confronted with the witnesses
against him or her, and the main and essential purpose of confrontation is to
secure the opportunity for cross-examination.
3. Constitutional Law: Trial: 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 has been a prior
opportunity for cross-examination.
4. Testimony: Words and Phrases. Testimony is defined as a solemn declaration or
affirmation made for the purpose of establishing or proving some fact.
5. Constitutional Law: Hearsay. Nontestimonial statements are not subject to
Confrontation Clause protection or analysis.
6. Constitutional Law: Trial: Appeal and Error. Error of a constitutional magni-
tude need not automatically require reversal if that error was a trial error and not
a structural one.
7. Trial: Evidence: Appeal and Error. The improper admission of evidence is a
trial error and subject to harmless error review.
8. Verdicts: Appeal and Error. Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict surely would have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
9. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
admitted by a trial court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict.
Appeal from the District Court for Box Butte County, leo
dobrovolNy, Judge, on appeal thereto from the County Court
for Box Butte County, C harleS plaNtz, Judge. Judgment of
District Court reversed, and cause remanded for a new trial.
Bell Island, of Island, Huff & Nichols, P.C., L.L.O., for
appellant.
932 	283 NEBrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

Jon Bruning, Attorney General, and kimberly A. klein for
appellee.
heaviCaN, C.J., Wright, C oNNolly, StephaN, MCC orMaCk ,
and M iller-lerMaN, JJ.
heaviCaN, C.J.
INTrODUCTION
Chad N. Sorensen was convicted of driving under the influ-
ence of alcohol (DUI), second offense, with a blood alcohol
content over .15. Sorensen was sentenced to probation, and his
license was revoked for 1 year. He appeals.
At issue on appeal is whether Sorensen’s confrontation rights
were violated when the county court admitted into evidence the
affidavit of the nurse who performed Sorensen’s blood draw
without also requiring that nurse to testify at trial. We find that
the county court erred in admitting the affidavit and that this
error was not harmless.
BACkGrOUND
Sorensen was arrested on December 13, 2008, for DUI. He
was transported to a hospital, where a sample of his blood was
drawn for blood alcohol testing.
Following the collection of blood, the nurse who col-
lected the sample completed a “Certificate of Blood Specimen
Taken in a Medically Acceptable Manner” (Certificate). This
Certificate indicated the name of the person who drew the
blood; that the sample was taken at the request of law enforce-
ment; the date, time, and name of the subject; that the sample
was done in a medically acceptable manner; that the person
drawing the sample was qualified under Nebraska law to do
so; that the antiseptic solution was nonalcoholic; that the
sample was collected in a clean container which contained
an anticoagulant-preservative substance; that the container
was labeled appropriately and otherwise initialed by the per-
son collecting the sample; and that the container was sealed
after collection.
Following 	this 	blood 	draw, 	the 	sample 	collected 	from
Sorensen was tested and found to have a blood alcohol content
STATE v. SOrENSEN 	933
Cite as 283 Neb. 932

of .198. Sorensen was charged with DUI, as well as a violation
of Nebraska’s open container law.
At trial, the State offered into evidence the Certificate.
Sorensen objected on the basis of confrontation and hear-
say. These objections were overruled, and the Certificate was
admitted into evidence. The nurse did not appear as a witness
at trial. The arresting officer did testify, as did the analyst who
performed the blood alcohol testing. In addition to objecting
to the introduction of the Certificate, Sorensen objected to the
admission of the testing results on the basis of confrontation,
hearsay, and foundation. Those objections were also overruled,
and the results were admitted into evidence.
Sorensen was convicted by jury of DUI with a blood alcohol
content over .15 and of having an open container of alcohol
in his vehicle. The county court later found the DUI to be a
second offense. Sorensen was sentenced to 24 months’ proba-
tion. His license was also revoked for 1 year, concurrent with
any administrative license revocation, and he was fined $50 for
the open container violation. Sorensen appealed to the district
court, which affirmed.
ASSIGNMENT OF ErrOr
Sorensen assigns that the county court’s admission of the
nurse’s affidavit regarding the blood draw violated his confron-
tation rights under the Sixth Amendment.
STANDArD OF rEVIEW
[1] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution and
reviews the underlying factual determinations for clear error.1
ANALYSIS
Confrontation.
On appeal, Sorensen assigns that his Sixth Amendment
right to confrontation was violated when the court admit-
ted 	the 	Certificate 	but 	did 	not 	require 	the 	nurse 	who
1 See State v. Britt, ante p. 600, 813 N.W.2d 434 (2012).
934 	283 NEBrASkA rEPOrTS

performed the blood draw to testify or otherwise be subject
to cross-examination.
[2] The Sixth Amendment to the U.S. Constitution guaran-
tees the right of an accused in a criminal prosecution to be con-
fronted with the witnesses against him or her, and the main and
essential purpose of confrontation is to secure the opportunity
for cross-examination.2 The U.S. Supreme Court, in Crawford
v. Washington,3 set forth a new standard for analyzing confron-
tation issues; we have recognized and applied Crawford on
several occasions.4
[3-5] In Crawford, the court explained that where “testimo-
nial” 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 has been a prior
opportunity for cross-examination.5 Under Crawford, testimony
is typically a “‘solemn declaration or affirmation made for the
purpose of establishing or proving some fact.’”6 As to testimo-
nial statements covered by the Confrontation Clause, the Court
in Crawford stated:
Various formulations of this core class of “testimo-
nial” statements exist: “ex parte in-court testimony or its
functional equivalent—that is, material such as affidavits,
custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial state-
ments that declarants would reasonably expect to be used
prosecutorially,” . . . “extrajudicial statements . . . con-
tained in formalized testimonial materials, such as affi-
davits, depositions, prior testimony, or confessions,” . . .
“statements that were made under circumstances which
would lead an objective witness reasonably to believe
2 See, e.g., Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004).
3 Id.
4 State v. Britt, supra note 1; State v. Fischer, 272 Neb. 963, 726 N.W.2d
176 (2007); State v. Hembertt, 269 Neb. 840, 696 N.W.2d 473 (2005);
State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004).
5 Crawford, supra note 2.
6 Id., 541 U.S. at 51.
STATE v. SOrENSEN 	935
Cite as 283 Neb. 932

that the statement would be available for use at a later
trial . . . .”7
Conversely, 	nontestimonial 	statements 	are 	not 	subject 	to
Confrontation Clause protection or analysis.8
The Court subsequently clarified the meaning of “testi-
monial” in Melendez-Diaz v. Massachusetts9 and Bullcoming
v. New Mexico.10 Melendez-Diaz involved the admission of
a certificate stating that the tested substances were cocaine.
The analyst who performed the analysis did not testify. The
Court found that the admission of the certificate without
subjecting the analyst to cross-examination was a violation
of the defendant’s confrontation rights. The Court first found
that there was “little doubt” that the certificate at issue fell
within the “‘core class of testimonial statements’” described
in Crawford.11 The Court further held that the certificates were
“functionally identical to live, in-court testimony, doing ‘pre-
cisely what a witness does on direct examination,’”12 and that
the circumstances surrounding the creation of the certificate, as
well as the express purpose for the certificates as stated by law,
left no doubt that the certificates were testimonial.13
The Court further expanded its confrontation jurisprudence
in Bullcoming. In that case, the lower court admitted a blood
alcohol content report despite the fact that the analyst who pre-
pared the report had been placed on unpaid leave and did not
testify. Though the certifying analyst did not testify, the State
did present the testimony of another analyst who was familiar
with the laboratory’s testing procedures.
7 Id., 541 U.S. at 51-52 (citations omitted).
8 See Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d
224 (2006).
9 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L.
Ed. 2d 314 (2009).
10 Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d
610 (2011).
11 Melendez-Diaz, supra note 9, 129 S. Ct. at 2532.
12 Id.
13 Melendez-Dias, supra note 9.
936 	283 NEBrASkA rEPOrTS

The Court in Bullcoming first concluded that as in Melendez-
Diaz, the report in question was clearly testimonial. The Court
then turned to the question of whether the testimony of the
second analyst was sufficient to protect the defendant’s con-
frontation rights and concluded that it was not. The Court
reasoned that the “surrogate testimony . . . could not convey
what [the certifying analyst] knew or observed about the
events his certification concerned . . . . Nor could such sur-
rogate testimony expose any lapses or lies on the certifying
analyst’s part.”14
This court has also recently opined on the issue of testi-
monial versus nontestimonial evidence. In State v. Britt,15 we
recognized the validity of our pre-Melendez-Diaz holding16
that a certificate signed by the licensed supplier of a solution
used in the maintenance and checking of breath testing devices
was not testimonial. In Britt, we noted that the same type
of certificate
was not created in preparation for a trial and did not per-
tain 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 regard-
less 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 [the
defendant] to be considered testimonial.17
Unlike the certificate in Britt, the nurse’s Certificate in this
case was clearly testimonial. To begin, it is, at its essence, an
affidavit. It was admitted to prove the facts in it, namely that
the blood draw was performed in a medically acceptable man-
ner, including the averments as set forth above. In the words
of the U.S. Supreme Court: this affidavit was “functionally
14 Bullcoming, supra note 10, 131 S. Ct. at 2715.
15 Britt, supra note 1.
16 See Fischer, supra note 4.
17 Britt, supra note 1, ante at 606-07, 813 N.W.2d at 439.
STATE v. SOrENSEN 	937
Cite as 283 Neb. 932

identical to live, in-court testimony, doing ‘precisely what a
witness does on direct examination.’”18
Moreover, this situation is easily distinguishable from Britt.
Here, the Certificate was the statement of the nurse who actu-
ally performed Sorensen’s blood draw. This blood was then
tested, and those results were used against Sorensen to con-
vict him of DUI. The Certificate itself was filled out at the
request of law enforcement under authority of Neb. rev. Stat.
§ 60-6,202 (reissue 2010), which expressly provides that
either law enforcement or the defendant may request such a
certificate when a blood draw is performed in connection with
an arrest under Neb. rev. Stat. § 60-6,197 (reissue 2010)—
one of the charged violations in this case. Section 60-6,202(2)
further provides that the certificate “shall be admissible in
any proceeding as evidence of the statements contained in
the certificate.” Given this, unlike Britt,19 it cannot be said
that this Certificate and its statements were too attenuated to
be testimonial.
We therefore conclude that the nurse’s Certificate was testi-
monial and that Sorensen’s right to confrontation was violated
when the State was not required to call the nurse as a witness
at trial.
Harmless Error and Double Jeopardy.
[6,7] Our review does not end with our conclusion that the
county court erred. Error of a constitutional magnitude need
not automatically require reversal if that error was a “trial”
error and not a “structural” one.20 We have held that the
improper admission of evidence is a “trial” error and subject to
harmless error review.21
[8] Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty ver-
dict surely would have been rendered, but, rather, whether the
18 Melendez-Diaz, supra note 9, 129 S. Ct. at 2532.
19 See Britt, supra note 1.
20 See State v. Bauldwin, ante p. 678, 811 N.W.2d 267 (2012).
21 See id.
938 	283 NEBrASkA rEPOrTS

actual guilty verdict rendered in the questioned trial was surely
unattributable to the error.22
We cannot find in this case that the jury’s guilty verdicts
were surely unattributable to the error in admitting the nurse’s
affidavit. The affidavit in this case opined that Sorensen’s
blood draw was performed in a medically acceptable manner
and detailed the procedures followed by the nurse in collect-
ing that sample. But the averments in the affidavit were the
only evidence in the record as to the procedures required to
be followed when collecting a blood specimen. Without this
affidavit, the evidence in this case was insufficient to establish
foundation for the blood draw.
[9] Having concluded that reversible error has occurred,
we must also determine whether the totality of the evi-
dence admitted by the district court was sufficient to sustain
Sorensen’s convictions. If it was not, then the principles of
double jeopardy will not allow a remand for a new trial.23
But the Double Jeopardy Clause does not forbid a retrial so
long as the sum of all the evidence admitted by a trial court,
whether erroneously or not, would have been sufficient to sus-
tain a guilty verdict.24
And we conclude that when the affidavit is considered
together with the other evidence against Sorensen, there was
sufficient evidence to sustain Sorensen’s guilty verdicts. We
therefore reverse the convictions and remand the cause for a
new trial.
CONCLUSION
The decision of the district court affirming Sorensen’s con-
victions is reversed, and the cause is remanded for a new trial.
reverSed aNd reMaNded for a NeW trial .
22 State v. Reinhart, ante p. 710, 811 N.W.2d 258 (2012); Bauldwin, supra
note 20; State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009); State v.
Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), abrogated on other
grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
23 See State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).
24 Id.
STATE v. SOrENSEN 	939
Cite as 283 Neb. 932