in a criminal trial, after a pretrial hearing and order overruling a defendant’s motion to suppress evidence, the defendant must object at trial to admission of the evidence which was the subject of the suppression motion in order to preserve the question for appeal
How later courts described this case
- in a criminal trial, after a pretrial hearing and order overruling a defendant’s motion to suppress evidence, the defendant must object at trial to admission of the evidence which was the subject of the suppression motion in order to preserve the question for appeal
- upholding admission of “excited utterance" made by four-year-old child two days after alleged incident and after police questioning
- spontaneity is an indication of a statement’s reliability
- entry proper, as “had the police officers failed to enter the home to determine the well-being of the children, they may well have been derelict in their duty”
Written by the judges who cited it.
The opinion
Grant, J.,
concurring.
I agree with the court’s decision affirming defendant’s convictions. I cannot agree with the court’s holding that the statements of 4-year-old Cindy Plant made to Officer Muldoon 2 days after the injuries inflicted by defendant on Christopher Bartlett, and concerning defendant’s conduct at the time of those injuries, were “excited utterances” and therefore admissible in evidence. I concur because I believe the statements were admissible under Nebraska’s residual hearsay exceptions in Neb. Rev. Stat. §§ 27-803 (22) and 27-804(2)(e) (Reissue 1989) for the reasons set out in the majority opinion. I believe, however, that for this court to hold that the child’s statements were “excited utterances” extends that doctrine to extraordinary and improper lengths.
The facts surrounding the child’s statements to the officer show conclusively, to me, that the child’s taped statements were not spontaneous and, therefore, not excited utterances. The child’s statements followed a 20-minute preliminary conversation between the officer and the child. The contents of that conversation are not before us, and we do not know what was said by either the child or the officer. It is undisputed that *344 the conversation took place 2 days after the incident in question.
I agree that the time interval is not controlling, see In re Interest of R.A. and V.A., 225 Neb. 157, 403 N.W.2d 357 (1987), but the interval should be considered. I also agree with the majority’s statement that “[t]he key requirement [to a determination of spontaneity] is that the statement be made without time for conscious reflection.”
What I cannot agree with is the majority’s conclusion that the facts in this case permit the reception of the child’s taped statements as excited utterances. In this regard, the majority opinion states: “Cindy’s statements were made to a police officer, an authority figure commanding truthfulness. Related to this, the interview was conducted by one professionally trained in eliciting the truth from an interviewee.” In the circumstances in this case, I cannot see how statements elicited (and I do believe that is the appropriate word) from a 4-year-old child by a trained interviewer 2 days after an event could be spontaneous. I think we here stretch the excited utterance rule to the point where all utterances by a child may be admissible. I think that is wrong.
Nonetheless, I concur because, as stated above, I believe there were appropriate other grounds for the admission of the child’s statements to the officer. Overwhelming other evidence pointed to the defendant’s guilt, including spontaneous statements of the same child to the physician who treated her.
Hastings , C. J., j oins in this concurrence.