## Facts

- A Grand Island police officer stopped Jerry Dean Morrow, Sr. after observing a traffic violation.
- The officer testified that after the patrol car’s lights activated, Morrow continued driving for roughly 2½ blocks while the officer observed significant movement inside the vehicle by all occupants.
- The occupants were Morrow (driver), Nancy Sensenbach (front passenger), and Shelli Ballou (rear seat behind Morrow).
- After making contact and returning to the patrol car, the officer again observed movement inside the vehicle.
- Morrow consented to a search of the car.
- During the search, the officer found a disposable coffee cup wedged between the front passenger seat and the center console.
- Inside the cup were a small glass pipe with burned residue and a baggie containing a crystal substance later identified as methamphetamine.
- Morrow denied knowledge of the cup and its contents.
- At trial, the officer testified that both Sensenbach and Ballou told him the cup and drugs were not theirs.
- Sensenbach testified at trial; Ballou did not testify and was treated as unavailable.
- The defense sought to have Sensenbach testify that, during Morrow’s arrest, Ballou made a separate statement to Sensenbach indicating the drugs were Ballou’s.
- The trial court excluded Sensenbach’s testimony about Ballou’s statement as hearsay.
- The jury convicted Morrow of possession of methamphetamine, and he appealed.

## Issues

1. Under Nebraska Evidence Rule 806, may a defendant impeach an unavailable hearsay declarant—whose out-of-court statements were introduced by the State—by offering the declarant’s inconsistent out-of-court statements through another witness?
2. If the trial court excluded such impeachment, was the error harmless in a possession case where the main dispute was who possessed the methamphetamine?

## Decision

- The Nebraska Supreme Court reversed Morrow’s conviction and remanded for a new trial.
- The court held the trial court erred by excluding the defense-offered statement because Rule 806 permits attacking the credibility of a hearsay declarant with evidence that would be admissible if the declarant testified, including inconsistent statements.
- The court determined the error was not harmless because the excluded impeachment evidence directly affected the dispute over whether the methamphetamine belonged to Morrow or Ballou.

## Legal Principles

- When the Nebraska Evidence Rules apply, admissibility is governed by those rules; trial-court discretion plays a role only when the rules make discretion part of the admissibility decision.
- Under Nebraska Evidence Rule 806 (like Federal Rule of Evidence 806), once a hearsay statement is admitted, the declarant’s credibility may be attacked (and supported) by any evidence that would be admissible if the declarant testified as a witness.
- Rule 806 allows impeachment of a hearsay declarant by prior inconsistent statements, even when the declarant is unavailable and even when the inconsistent statements are themselves out-of-court statements.
- An out-of-court statement may be admitted for the limited purpose of impeaching a hearsay declarant’s credibility, even though it would be hearsay if offered for its truth.
- Erroneous exclusion of Rule 806 impeachment warrants reversal when the declarant’s credibility matters to a contested element and the reviewing court cannot conclude the exclusion did not affect the verdict.

## Conclusion

Because the State introduced Ballou’s out-of-court denial of ownership through the officer, Rule 806 entitled Morrow to attack Ballou’s credibility with her inconsistent statement indicating the drugs were hers; excluding that impeachment in a case centered on attribution of the methamphetamine was prejudicial, so the conviction was reversed and the case remanded for a new trial.


State v. Morrow, 731 N.W.2d 558 (2007)