State v. Parker

of the children, the district court should have also considered
the superior interests of Farnsworth, the biological parent. We
therefore reverse the decision of the district court and award
custody of the two minor children to Farnsworth.
R eveRsed .
state of N ebRaska , appellee , v .
steveN paRkeR, appellaNt .
757 N.W.2d 7
Filed October 24, 2008. 	No. S-06-1442.
1. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by such rules; judicial discre-
tion is involved only when the rules make discretion a factor in determining
admissibility.
4. Rules of Evidence: Appeal and Error. When judicial discretion is not a factor,
whether the underlying facts satisfy the legal rules governing the admissibility of
such evidence is a question of law, subject to de novo review.
5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
6. Constitutional Law: Trial. The right to a fair trial is a fundamental liberty
secured by the 14th Amendment.
7. Constitutional Law: Criminal Law: Trial. Whatever the status of a defendant
in a criminal case may be and whatever be the nature of the crime with which he
or she is charged, each and all are entitled to the same fair trial guaranteed by the
U.S. Constitution.
8. Trial: Presumptions. One of the essential safeguards of a fair trial is the benefit
of the presumption of innocence.
9. Criminal Law: Presumptions. The presumption of innocence is the undoubted
law, axiomatic and elementary, and its enforcement lies at the foundation of the
administration of our criminal law.
10. Trial: Evidence: Presumptions: Proof. Under the presumption of innocence,
guilt is to be established by the State solely through the probative evidence
introduced at trial and shall not be founded on official suspicion, indictment, con-
tinued custody, or other circumstances not adduced as proof at trial.
STATE v. pARkER 	661
Cite as 276 Neb. 661
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

11. Trial: Evidence: Verdicts. A fair trial implies a trial with sympathy for one party
or hostility toward the other being kept at a minimum at all stages so that the
verdict rendered is based on a dispassionate consideration of the evidence.
12. Trial: Courts. Courts must carefully guard against dilution of the right to a fair
trial and stay alert to factors that may undermine the fairness of the factfinding
process. The practice calls for close judicial scrutiny where reason, principle, and
common human experience indicate a probability of deleterious effects on funda-
mental rights.
13. Trial: Juries: Words and Phrases. A practice is inherently prejudicial to the
defendant’s right to a fair trial when it presents an unacceptable likelihood of
impermissible factors coming into play in the jury’s determination of guilt.
14. Trial. If a practice is inherently prejudicial, it can only pass close scrutiny if
justified by an essential state interest specific to that trial.
15. Due Process: Convictions: Proof: Appeal and Error. If an inherently prejudi-
cial practice is not justified by an essential state interest, then the defendant need
not demonstrate actual prejudice in order to make out a due process violation
warranting a reversal of his or her conviction; it is the State that must prove
beyond a reasonable doubt that the error did not contribute to the verdict.
16. Trial. Not every practice tending to single out the accused from everyone else in
the courtroom must be struck down.
17. Trial: Jurors. The chief feature that distinguishes practices that are not inher-
ently prejudicial from those that are is the wider range of inferences that a juror
might reasonably draw from the practice.
18. Minors. The protection of children from physical as well as psychological harm
is a compelling state interest.
19. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
20. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
21. Rules of Evidence: Hearsay: Words and Phrases. A written assertion offered
to prove the truth of the matter asserted is a hearsay statement under Neb. Evid.
R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 1995), unless it falls within an
exception or exclusion under the hearsay rules.
22. Double Jeopardy: Appeal and Error. Although the Double Jeopardy Clauses of
the federal and state Constitutions do not protect against a second prosecution for
the same offense where a conviction is reversed for trial error, they bar retrial if
the reversal is necessitated because the evidence was legally insufficient to sus-
tain the conviction.
23. 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 Sarpy County: david k.
aRteRbuRN, Judge. Reversed and remanded for a new trial.
662 	276 NEbRASkA REpORTS

Robert b. Creager, of Anderson, Creager & Wittstruck, p.C.,
for appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
H eavicaN, 	c.J., 	WRigHt , 	coNNolly , 	geRRaRd , 	stepHaN,
M ccoRMack , and M illeR-leRMaN, JJ.
M ccoRMack , J.
NATURE OF CASE
The defendant, Steven parker, was found guilty of first
degree sexual assault1 and was sentenced to 10 to 16 years’
imprisonment. During the testimony of the alleged victim,
S.M., the court placed a large screen in the courtroom to block
parker and S.M. from seeing one another. We conclude that
the screen unduly compromised the presumption of innocence
fundamental to the right to a fair trial. The presence of the
screen in the courtroom, in an obvious and peculiar departure
from common practice, could have suggested to the jury that
the court believed S.M. and endorsed her credibility, in viola-
tion of parker’s right to a fair trial. because other means were
available that would have protected S.M. without depriving
parker of his right to a fair trial, the screen was not justifiable.
because we cannot discount the effect the screen had on the
jury’s verdict, we reverse parker’s conviction.
bACkGROUND
parker was charged with first degree assault of S.M. in rela-
tion to an incident occurring in June 2003. prior to trial, the
State requested that the court allow S.M. to testify in cham-
bers rather than in the courtroom. Nebraska law2 provides
that, upon a showing of compelling need, in lieu of normal
courtroom testimony, the court may allow videotaped pretrial
deposition testimony, in camera closed-circuit testimony, or
any other accommodation of a child victim or child witness to
a felony.
1 See Neb. Rev. Stat. § 28-319(1)(c) (Reissue 1995).
2 Neb. Rev. Stat. § 29-1926 (Cum. Supp. 2004).
STATE v. pARkER 	663
Cite as 276 Neb. 661

A pretrial hearing was conducted to determine whether
there was such a compelling need in this case. Testimony was
admitted at the hearing describing S.M.’s fear of parker and
her past psychological difficulties based on that fear, including
posttraumatic stress disorder. S.M.’s treating psychologist, a
specialist in child abuse, stated her concern that if S.M. were to
be placed face-to-face with parker at trial, she would reexperi-
ence the trauma of the abuse and suffer a debilitating relapse
of posttraumatic stress.
The court found that some accommodation was necessary to
protect S.M. from the psychological trauma that could result
from a face-to-face confrontation with parker. The trial court
did not, however, grant the prosecution’s request for in camera
testimony. Instead, it found that “a less substantial digres-
sion from normal trial procedure is possible to safeguard the
child’s interest short of the procedure requested.” The proce-
dure the court decided upon involved the use of a screen in the
courtroom during S.M.’s testimony that would block her view
of parker.
The courtroom in which parker was tried is small. From
the point of view of the parties, the defense table is on the
right, and the prosecution table is on the left. The witness
box is located on the right side of the room, in front of and
slightly to the right of the defense table. The jury box is on
the opposite side of the courtroom, and the witness box is
oriented diagonally so that a witness is seated close to the
wall, facing the bench and jury box, and facing away from the
defense table.
As a result of this configuration, it was possible to place a
screen perpendicular to the right wall of the courtroom, and
extend the screen into the courtroom between the defense table
and the witness box. The screen appears, from the photographs
in the record, to have been a panel of the kind commonly used
as an office partition. When the edge of the panel was against
the right wall, the panel would stop just a few feet short of the
edge of the defense table.
because of the way the witness box was angled away from
the defense table, it was apparently the trial court’s original
intent to keep the panel in this position, with the edge touching
664 	276 NEbRASkA REpORTS

the wall, during the entire trial. In this way, the screen would
never have been placed directly in front of parker and, argu-
ably, the jury would not have been aware that because of the
angle of the witness box, parker was shielded from S.M.’s
view. It was apparently discovered that the panel in this posi-
tion would not be far enough over to sufficiently block S.M.’s
view of parker, and a new plan was devised that involved mov-
ing the panel before S.M.’s testimony.
After having the edge of the screen touching the wall dur-
ing other witnesses’ testimony, the judge dismissed the jury on
break while S.M. entered the witness box. As S.M. walked into
the room, parker was seated with the panel and an additional
blackboard fully blocking any view of him. Once S.M. had
sat down, the blackboard was removed. However, the panel
remained behind—now located several feet into the courtroom
and no longer sitting with one edge against the wall. The
parties stayed seated as the jury reentered. The jurors could
clearly observe that the panel was now situated so it com-
pletely covered the right half of the defense table where parker
was sitting. It was equally clear from the jury’s vantage point
that this panel was blocking S.M.’s view of parker and parker’s
view of her.
S.M. testified about the details of the abuse that occurred one
night when parker was visiting her home. S.M. also explained
in detail how, after the incident, she became extremely afraid
of parker. For this reason, and also because she felt ashamed,
S.M. explained that she did not tell anyone about the incident
for a long time.
S.M. testified without objection that eventually, during the
following school year, she told her best friend, kellie p., about
how parker had touched her. S.M. described how, in June 2005,
kellie finally convinced S.M. to tell S.M.’s mother what had
happened. S.M. said that after she told her parents, she felt
very relieved that her parents were not mad at her.
At the same time, S.M.’s fear of parker was heightened by
the prospect that her parents would confront parker and that he
might retaliate against her or her family. S.M. testified that at
one point after learning that she would likely be forced to see
parker in court, “I didn’t want to see him so I just — I just told
STATE v. pARkER 	665
Cite as 276 Neb. 661

[my mother] that it never happened.” The next day, however,
S.M. explained to her mother that she had recanted only “so
I wouldn’t have to see him in court.” before S.M. testified,
S.M.’s parents and her treating psychologist testified about the
trauma S.M. had suffered and how fearful she was of parker.
S.M.’s parents specifically recounted for the jury how afraid
S.M. would become whenever she was forced to contemplate
facing parker at trial.
Following S.M.’s testimony, the screen was moved back to
its original position with one edge touching the wall. The jury
found parker guilty of the charge filed, and parker appeals
the conviction.
ASSIGNMENTS OF ERROR
parker asserts, restated, that (1) the trial court’s actions
in erecting a screen between S.M. and parker were unautho-
rized by § 29-1926; (2) § 29-1926 is unconstitutionally vague
and overbroad on its face; (3) the screen violated parker’s
rights under the Confrontation Clause; (4) the screen violated
parker’s rights to a fair trial under the Due process Clause; (5)
the trial court erred in admitting kellie’s hearsay testimony;
(6) the trial court erred in failing to grant a motion for mistrial
for prosecutorial misconduct during closing arguments; and (7)
trial counsel, who is different from appellate counsel, was inef-
fective for failing to make a timely motion for mistrial based
on prosecutorial misconduct during closing arguments.
STANDARD OF REVIEW
[1,2] The determination of whether the procedures afforded
an individual comport with constitutional requirements for pro-
cedural due process presents a question of law.3 On a question
of law, an appellate court is obligated to reach a conclusion
independent of the determination reached by the court below.4
[3-5] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules make
3 Newman v. Rehr, 263 Neb. 111, 638 N.W.2d 863 (2002).
4 Id.
666 	276 NEbRASkA REpORTS

discretion a factor in determining admissibility.5 When judicial
discretion is not a factor, whether the underlying facts satisfy
the legal rules governing the admissibility of such evidence is
a question of law, subject to de novo review.6 A trial judge does
not have discretion to admit inadmissible hearsay statements.7
Therefore, apart from rulings under the residual hearsay excep-
tion, an appellate court reviews for clear error the factual find-
ings underpinning a trial court’s hearsay ruling and reviews de
novo the court’s ultimate determination to admit evidence over
a hearsay objection.8
ANALYSIS
couRtRooM scReeN aNd R igHt to faiR tRial
[6,7] The first issue we address, because we find it to be
dispositive, is whether the use of a courtroom screen violated
parker’s due process right to a fair trial. The right to a fair
trial is a fundamental liberty secured by the 14th Amendment.9
“‘Whatever the status of a defendant in a criminal case may
be and whatever be the nature of the crime with which he is
charged, each and all are entitled to the same fair trial guaran-
teed by our Constitution.’”10
[8,9] One of the essential safeguards of a fair trial is the
benefit of the presumption of innocence.11 The presumption of
innocence “is the undoubted law, axiomatic and elementary,
and its enforcement lies at the foundation of the administration
of our criminal law.”12
[10,11] Under this presumption of innocence, guilt is to be
established by the State solely through the probative evidence
5 State v. Draganescu, ante p. 448, 755 N.W.2d 57 (2008).
6 Id.
7 Id.
8 Id.
9 Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126
(1976).
10 Wamsley v. State, 171 Neb. 197, 211, 106 N.W.2d 22, 30 (1960).
11 Estelle v. Williams, supra note 9.
12 Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 39 L. Ed. 481
(1895).
STATE v. pARkER 	667
Cite as 276 Neb. 661

introduced at trial.13 Guilt shall not be founded on “‘offi-
cial suspicion, indictment, continued custody, or other circum-
stances not adduced as proof at trial.’”14 A fair trial implies
a trial “with sympathy for one party or hostility toward the
other being kept at a minimum at all stages”15 so that the
“verdict rendered is based on a dispassionate consideration of
the evidence.”16
[12] The U.S. Supreme Court has mandated that courts
“carefully guard against dilution”17 of these principles of a fair
trial and stay “alert to factors that may undermine the fairness
of the fact-finding process.”18 While the Court has acknowl-
edged the difficulty in determining the actual impact of a
particular trial procedure on the judgment of the jury, it has
explained that where “reason, principle, and common human
experience”19 indicate a “probability of deleterious effects on
fundamental rights,” then the procedure “calls for close judi-
cial scrutiny.”20
[13] The U.S. Supreme Court has considered certain proce-
dures, such as compelling the defendant to attend trial in vis-
ible shackles, gagged, or in recognizable prison clothing, and
determined them to be “inherently prejudicial” to the defend-
ant’s right to a fair trial and, thus, subject to close scrutiny.21
In these cases, the scene presented to the jurors simply posed
13 Id.
14 Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 89 L. Ed. 2d 525
(1986). See, also, State v. Weikle, 223 Neb. 81, 388 N.W.2d 110 (1986).
15 Wamsley v. State, supra note 10, 171 Neb. at 210, 106 N.W.2d at 30.
16 Id. at 208, 106 N.W.2d at 29.
17 Estelle v. Williams, supra note 9, 425 U.S. at 503.
18 Id.
19 Id., 425 U.S. at 504.
20 Id.
21 See, Deck v. Missouri, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953
(2005); Holbrook v. Flynn, supra note 14; Estelle v. Williams, supra note
9; Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
Compare, State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003); State v.
Sorich, 226 Neb. 547, 412 N.W.2d 484 (1987). See, also, State v. Daniels,
40 p.3d 611 (Utah 2002).
668 	276 NEbRASkA REpORTS

an unacceptable threat of “‘impermissible factors coming into
play’” in the jury’s determination of guilt.22
[14,15] If a practice is inherently prejudicial, it can only
pass close scrutiny if justified by an essential state interest spe-
cific to that trial.23 If the practice is not justified by an essential
state interest, then the defendant need not demonstrate actual
prejudice in order to make out a due process violation warrant-
ing a reversal of his or her conviction.24 Instead, in such cir-
cumstances, it is the State that must prove beyond a reasonable
doubt that the error did not contribute to the verdict.25
In Deck v. Missouri,26 the U.S. Supreme Court reasoned
that it was inherently prejudicial to force the defendant to
appear before the jury in visible shackles, because the shackles
“suggest[ed] to the jury that the justice system itself s[aw] a
‘need to separate a defendant from the community at large.’”
The Court further explained how the shackles were marks
of public shame and disgrace. And the Court concluded that
the use of shackles “almost inevitably implies to a jury, as a
matter of common sense, that court authorities consider the
offender a danger to the community.”27 It could not discount
the improper influence that this implication could have on the
jury’s verdict.
In Illinois v. Allen,28 the Court similarly explained:
Not only is it possible that the sight of shackles and
gags might have a significant effect on the jury’s feel-
ings about the defendant, but the use of this technique
is itself something of an affront to the very dignity and
decorum of judicial proceedings that the judge is seeking
to uphold.
22 Holbrook v. Flynn, supra note 14, 475 U.S. at 570. Accord Estelle v.
Williams, supra note 9.
23 Holbrook v. Flynn, supra note 14.
24 Deck v. Missouri, supra note 21.
25 Id.
26 Id., 544 U.S. at 630.
27 Id., 544 U.S. at 633.
28 Illinois v. Allen, supra note 21, 397 U.S. at 344.
STATE v. pARkER 	669
Cite as 276 Neb. 661

In Estelle v. Williams,29 the Court likewise reasoned that when
the defendant is forced to wear identifiable prison clothing in
front of the jury, there was an inherent risk from this “constant
reminder of the accused’s condition.”
[16] The U.S. Supreme Court has said that not every prac-
tice tending to single out the accused from everyone else
in the courtroom must be struck down.30 “[J]urors are quite
aware that the defendant appearing before them did not arrive
there by choice or happenstance.”31 Thus, the Court has “never
tried, and could never hope, to eliminate from trial proce-
dures every reminder that the State has chosen to marshal
its resources against a defendant to punish him for allegedly
criminal conduct.”32
In Holbrook v. Flynn,33 the Court accordingly held that extra
security employed during trial was not inherently prejudicial
to the defendant’s presumption of innocence. The trial court
had seated four uniformed state troopers in the front row of
the joint trial of six defendants. There were eight other law
enforcement officers throughout the courtroom. With the caveat
that in a different case, it did not wish to “minimize the threat
that a roomful of uniformed and armed policemen might pose
to a defendant’s chances of receiving a fair trial,”34 the Court
found that in this case, the practice was not “inherently preju-
dicial.” Even if the jurors had known the use of troopers was
not common practice, this would not have necessarily been
interpreted “as a sign that [the defendants] were particularly
dangerous or culpable.”35
[17] Instead, the Court explained, the jurors could have
“just as easily believe[d]” that the officers were there to guard
against outside disruptions; ensure peaceable resolution of any
29 Estelle v. Williams, supra note 9, 425 U.S. at 504.
30 Holbrook v. Flynn, supra note 14; State v. Mata, supra note 21.
31 Holbrook v. Flynn, supra note 14, 475 U.S. at 567.
32 Id.
33 Id.
34 Id., 475 U.S. at 570-71.
35 Id., 475 U.S. at 569.
670 	276 NEbRASkA REpORTS

tense courtroom exchanges; or think nothing at all, given the
presence of armed guards in most public places.36 Unlike other
practices struck down as inherently prejudicial, the troopers in
this case did not brand the defendant with an “unmistakable
mark of guilt”37 or with “unmistakable indications of the need
to separate a defendant from the community at large.”38 The
Court summarized: “The chief feature that distinguishes the
use of identifiable security officers from courtroom practices
we might find inherently prejudicial is the wider range of
inferences that a juror might reasonably draw from the offi-
cers’ presence.”39
We are unaware of a case in which any court has directly
addressed the impact of a courtroom screening device upon
the defendant’s right to a fair trial. This appears to be largely
due to the fact that, in contrast to the use of closed-circuit or
videotaped testimony, screens are rarely used as an accom-
modation of child witnesses. Nevertheless, we find the case of
Romero v. State,40 a case where a witness was allowed to wear
a noticeable disguise, to be illustrative of the inherent prejudice
resulting from the jury’s awareness of an officially sanctioned
protection from the defendant.
In Romero, the State’s witness was allowed to testify wear-
ing the “disguise” of dark sunglasses, a baseball cap pulled low
over his eyes, and a jacket with an upturned collar. Only the
witness’ ears, the tops of his cheeks, and the bridge of his nose
were visible. The witness had refused to testify without this
disguise because, while not the victim, he was generally fearful
of the defendant’s capacity for retribution.
On appeal, the court reversed the defendant’s conviction
because of the prejudicial nature of allowing such a disguise.
The court explained that it improperly communicated to the
36 Id.
37 Estelle v. Williams, supra note 9, 425 U.S. at 518. See, also, Holbrook v.
Flynn, supra note 14.
38 Holbrook v. Flynn, supra note 14, 475 U.S. at 569.
39 Id.
40 Romero v. State, 136 S.W.3d 680 (Tex. App. 2004), affirmed 173 S.W.3d
502 (Tex. Crim. App. 2005).
STATE v. pARkER 	671
Cite as 276 Neb. 661

jury that the defendant was dangerous or culpable. In addition,
the disguise added “an unnecessary element of drama [and]
placed unwarranted emphasis on [the defendant’s] testimony.”41
While the court confessed it would be impossible to determine
the weight individual jurors may have attributed to the disguise,
it concluded that the practice posed an unacceptable threat to
the defendant’s right to a fair trial.42
In this case, the threat to parker’s right to a fair trial was
even more apparent than the practice found impermissible in
Romero. From the beginning of the trial, as witnesses described
in great detail how fearful S.M. was of facing parker, a large
opaque screen jutted curiously into the room with one edge
touching the wall and the other edge approaching the corner
of parker’s table. Then, the jury was dismissed, and when it
came back, it found that S.M. was sitting in the witness box
and the screen had been moved to stand squarely between her
and parker.
The screen remained a constant presence during S.M.’s tes-
timony. The screen stood there protecting S.M. as she told the
jury how fearful she was of parker. The screen was, in effect,
a judicially sanctioned prop that lent credence to the wit-
ness’ claims. Not until S.M. left the courtroom was the screen
replaced to its original awkward position against the wall.
While the court surely placed the screen in the room out
of genuine concern for S.M., that concern is precisely the
threat to parker’s right to a fair trial. Whether S.M. really
had reason to fear parker, because he had abused her, was the
essential subject that the jury had to determine—based solely
on the evidence properly adduced at trial. The insertion of
the screen into the courtroom created a risk that this did not
occur. It would have been a matter of common sense for the
jurors to conclude that the court had placed the screen for
S.M.’s protection because the court believed her accusations
were true. We find it hard to imagine a practice more damag-
ing to the presumption of innocence than one from which the
41 Id. at 690.
42 Id.
672 	276 NEbRASkA REpORTS

jury may infer the court’s official sanction of the truth of the
accuser’s testimony.
And even discounting such an explicit connection, there were
no other innocuous inferences the jury would have been likely
to derive from the screen. This is unlike the extra security that
the jurors in Holbrook could have thought was due merely to
the number of defendants or outside disturbances or that they
could have barely noticed because of the common presence of
security in similar public places. Instead, more akin to prison
garb or shackles, the screen acted as a dramatic reminder of
parker’s position as the accused at trial. The scene presented
of the jurors watching parker as he was forced to look onto a
large panel instead of his accuser makes palpable the marks of
shame and guilt caused by this looming presence in the court-
room. Nor can we ignore, like Romero, the dramatic emphasis
placed by the screen upon the State’s key witness. In a case
such as this, where the jury’s assessment of the credibility of
the accuser is so crucial, the risk of these impermissible factors
simply cannot be overlooked. We conclude that the screen was
inherently prejudicial to parker’s right to a fair trial.
[18] Having determined that the screen was inherently preju-
dicial, we subject the procedure to close judicial scrutiny and
consider whether it was justified by an essential state interest
specific to this trial.43 We agree with the State’s contention that
the protection of children from physical as well as psycho-
logical harm is a compelling state interest.44 In this case, there
was testimony that S.M. could suffer serious psychological
harm if forced to view parker face-to-face. In addition, there
was evidence that S.M. would be unable to testify completely
and accurately under such duress, and this implicated the
State’s essential interest in the fairness and accuracy of the
trial process.45
43 Holbrook v. Flynn, supra note 14.
44 See, e.g., Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d
666 (1990).
45 See, Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed. 2d 482
(2006); Deck v. Missouri, supra note 21.
STATE v. pARkER 	673
Cite as 276 Neb. 661

Nevertheless, we conclude that the inherently prejudicial
practice in this case cannot pass close scrutiny, because the
court had available another equally effective method of pro-
tecting S.M. while procuring her testimony that would not
have been inherently prejudicial to parker’s due process rights.
Section 29-1926 specifically provides for various means of
obtaining the victim’s testimony through pretrial videotaping
or closed-circuit video from another room. It does not, actu-
ally, make any reference to using a screen in the courtroom.
The U.S. Supreme Court, while not addressing the Due process
Clause, has specifically sanctioned the use of one-way closed-
circuit television as a justified infringement upon the defend-
ant’s confrontation rights when a specific showing of neces-
sity is made.46 And at least one state court has addressed the
television procedure in a challenge based upon the defendant’s
right to a fair trial, finding it acceptable.
In Marx v. State,47 the court held that a closed-circuit in
camera procedure was not inherently prejudicial to the defend-
ant’s right to a fair trial. The trial court, after considering
specific evidence and finding that the victim and another child
witness would be traumatized by being required to testify in
the defendant’s presence, had allowed the children to testify
from another room through two-way closed-circuit television.
The jury was instructed by the court that such procedure was
authorized by statute “‘in these types of cases.’”48
On appeal, the court in Marx rejected the defendant’s con-
tention that the use of closed-circuit television impaired his
presumption of innocence. The court explained that the instruc-
tion likely conveyed to the jury the state’s general desire to
protect children from the intimidating courtroom environment
rather than from the defendant specifically. Even in the absence
of the instruction, the court opined that the closed-circuit pro-
cedure would probably be viewed by the jury as suggesting that
the witness was “‘fearful of testifying in the courtroom setting
46 Maryland v. Craig, supra note 44.
47 Marx v. State, 987 S.W.2d 577 (Tex. Crim. App. 1999).
48 Id. at 580.
674 	276 NEbRASkA REpORTS

rather than fearful of testifying while looking at the defend-
ant.’”49 As such, the court concluded that it was unlikely the
procedure would have an impermissible subconscious effect on
the jury’s attitude toward the defendant.
We agree that in videotaped or closed-circuit television pro-
cedures, the jury would not usually be specifically aware that
the child was being shielded from the defendant. Instead, the
jury could easily infer that the accommodation was standard
procedure for children who, as common sense dictates, may
be intimidated by the courtroom environment. The trial court
in this case indicated that it preferred that the jury see S.M.’s
testimony in person rather than through a television screen.
While this is generally preferable, the court lost sight of the
effect the screen would have on the presumption of parker’s
innocence. The State has made no attempt to prove that this
inherently prejudicial practice did not actually attribute to the
jury’s verdict, and so we are obliged to reverse, and remand for
a new trial.
H eaRsay obJectioN
[19] Having determined that a new trial is warranted by the
screen’s prejudice to parker’s due process rights, we need not
address his remaining assignments of error. However, an appel-
late court may, at its discretion, discuss issues unnecessary to
the disposition of an appeal where those issues are likely to
recur during further proceedings.50 We find that such an issue
exists with respect to kellie’s alleged hearsay testimony.
As previously noted, S.M. testified that she had confided in
her best friend, kellie, about the alleged sexual assault. kellie
testified as the last witness for the State’s case in chief. When
the prosecution began to ask kellie about the conversation
she had with S.M., parker’s counsel objected on the grounds
of hearsay. The prosecution responded that it was not offer-
ing S.M.’s statement for the truth of the matter asserted, but
49 Id. at 581, quoting Wayne R. LaFave & Jerold H. Israel, Criminal
procedure § 24.3 at 1015 (2d ed. 1992).
50 Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb. 214, 739
N.W.2d 162 (2007).
STATE v. pARkER 	675
Cite as 276 Neb. 661

“simply to show that a promise was made; consequently, that
— the effect on what that had on kellie.” The court allowed
the testimony to continue, and kellie testified that S.M. had
told her that parker “molested her or she said touched her
in her private parts.” The court then immediately instructed
the jury:
I will allow you to hear that evidence only for the pur-
pose of — that that was what was said, not for the truth
of the statement. So you can consider that statement only
for the purpose that that is what [S.M.] told kellie but not
for the purposes of whether that statement is true or not.
kellie continued to testify that S.M. had made her “pinky
swear” not to tell anyone about it, and so she did not. kellie
also testified about how she eventually convinced S.M. to
report the abuse to S.M.’s mother.
[20,21] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.51 If an out-
of-court statement is not offered for the purpose of proving the
truth of the facts asserted, it is not hearsay.52 but a statement
or assertion offered to prove the truth of the matter asserted is
a hearsay statement under Neb. Evid. R. 801(3)53 unless it falls
within an exception or exclusion under the hearsay rules.54
We agree with parker that the State’s explanation that the
statement was relevant to show that “a promise was made” was
insufficient to overcome parker’s hearsay objection. Neither
the prosecution nor the trial court clearly explained how the
fact that the statement was made was relevant to an issue in
the case. In particular, it was not explained how the effect of
the statement on kellie was relevant to an issue in the case.
And the State did not argue below or on appeal that any
statutory exception to the hearsay rule, such as responding to
a charge of recent fabrication, was applicable. Therefore, on
51 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
52 State v. Morrow, 273 Neb. 592, 731 N.W.2d 558 (2007), disapproved on
other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
53 Neb. Rev. Stat. § 27-801(3) (Reissue 1995).
54 State v. Draganescu, supra note 5.
676 	276 NEbRASkA REpORTS

the record and legal theory presently before us, the trial court
erred in admitting the statement.55
CONCLUSION
It is our duty to uphold that “axiomatic and elementary”56
aspect of the due process right to a fair trial—the presumption
of innocence. We would be derelict in that duty if we ignored
the significance of a large screen intruding into the courtroom,
obviously intended to shield parker from S.M. as she testifies
how the alleged crime has caused her to fear him. We cannot
conclude that the jury’s determination of the credibility of
S.M. was not influenced by the resulting drama, indignity, and
implicit endorsement of S.M.’s testimony.
[22,23] Although the Double Jeopardy Clauses of the federal
and state Constitutions do not protect against a second pros-
ecution for the same offense where a conviction is reversed for
trial error, they bar retrial if the reversal is necessitated because
the evidence was legally insufficient to sustain the convic-
tion.57 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.58 parker does not argue that principles of
double jeopardy would be offended by retrying him, and our
review of the record does not suggest that the evidence was
legally insufficient. Therefore, parker’s conviction is reversed
and the cause is remanded for a new trial in accordance with
this opinion.
R eveRsed aNd ReMaNded foR a NeW tRial .
55 See, e.g., Plowman v. Pratt, 268 Neb. 466, 684 N.W.2d 28 (2004). See,
also, U.S. v. Paulino, 445 F.3d 211 (2d Cir. 2006); U.S. v. Huguez-Ibarra,
954 F.2d 546 (9th Cir. 1992).
56 See Coffin v. United States, supra note 12, 156 U.S. at 453.
57 State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved on
other grounds, State v. McCulloch, supra note 52.
58 State v. McCulloch, supra note 52.
geRRaRd, J., concurring.
I fully join the court’s opinion. I agree that the presence
of a barrier in the courtroom, placed in front of the witness
STATE v. pARkER 	677
Cite as 276 Neb. 661

box during the testimony of a single witness, compromised
parker’s right to a fair trial. I write briefly to comment on
the issue presented by kellie’s testimony about S.M.’s hear-
say statement.
I agree that the record in this case does not support the trial
court’s decision to permit the disputed testimony. Neither the
State’s argument at trial nor the trial court’s reasoning when
allowing the testimony was sufficient to explain why the tes-
timony was relevant for a purpose other than the truth of the
matter asserted.
but I want to emphasize that our conclusion on this record
does not preclude the possibility that similar testimony may be
relevant and admissible for a nonhearsay purpose. Statements
that are relevant because of their impact on the hearer are not
hearsay.1 This may include statements relevant to explain the
course of a series of events or to otherwise provide context to
the evidence presented.2
but admitting evidence on such a basis requires a clear
understanding of why the evidence was relevant for a nonhear-
say purpose. In other words, context is everything. And in this
case, neither the State nor the trial court persuasively explained
how the effect of S.M.’s hearsay statement on kellie was rele-
vant. Appellate evaluation of this sort of issue is difficult when
the independent relevance of the evidence is not clearly articu-
lated on the record.3 Therefore, I agree that the explanations
proffered in this case were insufficient to justify admission of
the disputed evidence, and I join the court’s opinion.
H eavicaN, C.J., joins in this concurrence.
1 See, e.g., State v. Bear Runner, 198 Neb. 368, 252 N.W.2d 638 (1977).
See, generally, R. Collin Mangrum, Mangrum on Nebraska Evidence 638
(2008).
2 See, e.g., U.S. v. Eberhart, 467 F.3d 659 (7th Cir. 2006); U.S. v. Macari,
453 F.3d 926 (7th Cir. 2006); United States v. Bright, 630 F.2d 804 (5th
Cir. 1980); United States v. Gonzales, 606 F.2d 70 (5th Cir. 1979); Burgess
v. U.S., 786 A.2d 561 (D.C. 2001); Bear Runner, supra note 1.
3 Cf. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
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