State v. Thompson , 301 Neb. 472 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/16/2018 12:11 AM CST
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. THOMPSON
    Cite as 
    301 Neb. 472
    State of Nebraska, appellee, v.
    Benjamin M. Thompson, appellant.
    ___ N.W.2d ___
    Filed November 2, 2018.   No. S-17-952.
    1.	 Judges: Recusal. A recusal motion is initially addressed to the discre-
    tion of the judge to whom the motion is directed.
    2.	 Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. In reviewing a trial court’s ruling on a motion to
    suppress based on a claimed violation of the Fourth Amendment, an
    appellate court applies a two-part standard of review. Regarding histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment pro-
    tection is a question of law that an appellate court reviews independently
    of the trial court’s determination.
    3.	 Appeal and Error. Plain error may be found on appeal when an error
    unasserted or uncomplained of at trial, but plainly evident from the
    record, prejudicially affects a litigant’s substantial right and, if uncor-
    rected, would result in damage to the integrity, reputation, and fairness
    of the judicial process.
    4.	 Trial: Judges: Words and Phrases. An ex parte communication occurs
    when a judge communicates with any person concerning a pending or
    impending proceeding without notice to an adverse party.
    5.	 Trial: Judges: Recusal. A judge who initiates or invites and receives
    an ex parte communication concerning a pending or impending proceed-
    ing must recuse himself or herself from the proceedings when a litigant
    requests such recusal.
    6.	 Judges: Recusal. A judge should recuse himself or herself when a liti-
    gant demonstrates that a reasonable person who knew the circumstances
    of the case would question the judge’s impartiality under an objective
    standard of reasonableness, even though no actual bias or prejudice
    was shown.
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. THOMPSON
    Cite as 
    301 Neb. 472
    7.	 Criminal Law: Appeal and Error. Harmless error jurisprudence rec-
    ognizes that not all trial errors, even those of constitutional magnitude,
    entitle a criminal defendant to the reversal of an adverse trial result.
    8.	 Convictions: Appeal and Error. It is only prejudicial error, that is,
    error which cannot be said to be harmless beyond a reasonable doubt,
    which requires that a conviction be set aside.
    9.	 Appeal and Error. When determining whether an alleged error is so
    prejudicial as to justify reversal, courts generally consider whether the
    error, in light of the totality of the record, influenced the outcome of
    the case.
    10.	 Verdicts: Juries: Appeal and Error. Harmless error review looks to
    the basis on which the jury actually rested its verdict. The inquiry is
    not whether in a trial that occurred without the error, a guilty verdict
    would surely have been rendered, but whether the actual guilty verdict
    rendered was surely unattributable to the error.
    Appeal from the District Court for Douglas County: Gregory
    M. Schatz, Judge. Affirmed in part, and in part vacated and
    remanded for resentencing.
    Thomas C. Riley, Douglas County Public Defender, and Zoë
    R. Wade for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Heavican, C.J.
    INTRODUCTION
    Benjamin M. Thompson was operating a motor vehicle in
    which his three children were passengers. Thompson’s vehicle
    was struck by another vehicle, resulting in severe injury to
    two of the children. Following a jury trial, Thompson was
    convicted of driving under the influence, fifth offense; two
    counts of child abuse resulting in serious bodily injury; a
    single count of child abuse; and leaving the scene of an
    injury accident. Thompson now appeals from the district
    court’s denial of several pretrial motions, including a motion
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. THOMPSON
    Cite as 
    301 Neb. 472
    to recuse, a motion to suppress the results of his blood alco-
    hol testing, and a Franks v. Delaware 1 motion to exclude the
    results of his blood testing. We affirm Thompson’s convic-
    tions, but vacate the sentences imposed and remand the cause
    for resentencing.
    BACKGROUND
    On October 24, 2016, at approximately 2 p.m., police and
    medical personnel were dispatched to an injury accident near
    the intersection of Sorensen Parkway and 30th Streets in
    Omaha, Nebraska. One of the responding officers spoke to
    Randall Plugge, who reported that he had been involved in the
    accident. Plugge further reported that another vehicle, a white
    Nissan, had also been involved in the accident, but had left the
    scene and was heading north.
    Based on this information, an officer drove his cruiser
    north on 30th Street, following a noticeable gouge mark
    in the pavement, to a local park. The officer noted a white
    Nissan automobile in the parking lot, heavily damaged, with
    a man, later identified as Thompson, running from the Nissan
    to a trash can. In making contact with Thompson, the officer
    noted that Thompson’s hands were wet and that he smelled of
    alcohol. Thompson was ordered to the ground, and was hand-
    cuffed and arrested. An officer who later processed the scene
    testified at trial that there were both full and empty hard alco-
    hol and beer containers in the car and in the trash can. There
    was also a bottle of lorazepam, prescribed to Thompson, in
    the car.
    After being arrested, Thompson reported that his children
    were in the Nissan. The officer observed three children in the
    back seat: a 1-year-old, who was conscious and crying in a car
    seat; a 6-year old, who was slumped over and unconscious;
    and an 8-year-old, who was slumped over and unconscious and
    bleeding from her chin, mouth, and head.
    1
    Franks v. Delaware, 
    438 U.S. 154
    , 
    98 S. Ct. 2674
    , 
    57 L. Ed. 2d 667
          (1978).
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    STATE v. THOMPSON
    Cite as 
    301 Neb. 472
    The three children were transported to the hospital. The
    1-year-old was hospitalized for 2 days for trauma caused by
    the collision. The 6-year-old was in intensive care for 3 days
    and was diagnosed with a significant and “life-threatening”
    head injury.
    The 8-year-old’s condition was worse than those of the
    younger children. Her injuries were life-threatening and
    required a breathing tube and ventilator. A monitor was
    implanted in her brain to monitor swelling. One of her doctors
    testified that on a “Glasgow Coma Score,” which scores range
    from 3 to 15, with 3 being the worst, the child began as a 5,
    but later regressed to a 3. He testified that 7 months’ postcrash,
    her eyes were open, but she was unaware of her environment
    and only “stare[s] off into space.” The doctor testified that the
    child’s prognosis was poor and that she would probably never
    fully recover, would need to be fed through a feeding tube,
    and would wear diapers for the rest of her life.
    Law enforcement applied for and was issued a warrant to
    obtain a blood draw from Thompson for purposes of deter-
    mining his blood alcohol content. The sample tested at .115
    gram of alcohol per 100 milliliters of blood. Thompson was
    charged by information with driving under the influence, fifth
    offense; child abuse; two counts of child abuse resulting in
    serious bodily injury; and leaving the scene of an injury acci-
    dent. Counsel filed three pretrial motions which are relevant
    on appeal.
    Motion to Recuse.
    Following his arrest, Thompson was incarcerated while
    awaiting trial. He sought a furlough to visit his daughter in
    the hospital, as her doctors testified that she was not likely to
    survive. The State opposed the motion, noting both the seri-
    ous nature of the child’s injuries—specifically, that she would
    not recover and that life support was the only thing keeping
    her alive—and the fact that those injuries were the result of
    Thompson’s actions. After noting in the record that “in view
    of the seriousness of the offense, that [Thompson] is charged
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    STATE v. THOMPSON
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    301 Neb. 472
    with a Class IIA Felony, ‘Which may, from what the prosecutor
    tells me, change were this person to expire,’” the district court
    denied the motion.
    Thompson subsequently filed a motion to recuse, basing
    the motion on the district court’s statement that it was aware
    that were the child to die, the State would amend the charges
    against Thompson. Thompson’s counsel indicated that she,
    counsel, was not present for any such communication with the
    State and that the court could have discovered that intention
    only as a result of an ex parte communication with the State.
    At a hearing on the motion, the State offered into evidence an
    affidavit from the deputy county attorney on the case, averring
    that no communication on the matter alleged was had between
    the State and the district court.
    Following the hearing, the district court denied the motion
    to recuse, noting that even if the evidence was clear that such
    a communication had taken place (and, the court implied,
    such was not clear), that communication would not draw into
    the question the court’s impartiality because of the facts of
    this particular case: namely, that the accident was alleged
    to have been caused by Thompson and that it was presumed
    that had the child died, the State would amend the charges
    accordingly.
    Motion to Suppress and
    Franks Motion.
    Thompson also filed a motion to suppress on March
    23, 2017, and a motion seeking a hearing under Franks v.
    Delaware on April 13; both seeking to suppress the blood
    draw. The bases of the motion to suppress was Thompson’s
    assertion that the affidavit accompanying the request for
    the warrant did not contain sufficient information to estab-
    lish probable cause and that it was so lacking in indicia of
    probable cause as to make the good faith exception inappli-
    cable. The basis of the Franks motion was that the affidavit
    accompanying the request for a search warrant included false
    statements made knowingly or intentionally or with reckless
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    STATE v. THOMPSON
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    301 Neb. 472
    disregard for the truth. A hearing was held on both motions.
    On May 11, the district court denied both motions.
    Trial.
    A 7-day jury trial was held in May 2017. At trial, the
    State introduced evidence that Thompson had run a red light,
    causing the accident. The State also introduced evidence that
    Thompson admitted to drinking and offered further evidence
    indicating that after the accident, Thompson drove his car
    from the scene to a park. Following the trial, the jury found
    Thompson guilty on all counts. Thompson appeals.
    ASSIGNMENTS OF ERROR
    Thompson assigns that the district court erred in denying
    his motions to (1) recuse, (2) suppress blood test results, and
    (3) exclude blood test results under Franks.
    STANDARD OF REVIEW
    [1] A recusal motion is initially addressed to the discretion
    of the judge to whom the motion is directed.2
    [2] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review.
    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error, but whether those facts trig-
    ger or violate Fourth Amendment protection is a question of
    law that an appellate court reviews independently of the trial
    court’s determination.3
    [3] Plain error may be found on appeal when an error unas-
    serted or uncomplained of at trial, but plainly evident from the
    record, prejudicially affects a litigant’s substantial right and, if
    uncorrected, would result in damage to the integrity, reputa-
    tion, and fairness of the judicial process.4
    2
    State v. Thomas, 
    268 Neb. 570
    , 
    685 N.W.2d 69
    (2004).
    3
    State v. Taylor, 
    300 Neb. 629
    , 
    915 N.W.2d 568
    (2018).
    4
    State v. Vanness, 
    300 Neb. 159
    , 
    912 N.W.2d 736
    (2018).
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. THOMPSON
    Cite as 
    301 Neb. 472
    ANALYSIS
    Motion to Recuse.
    In his first assignment of error, Thompson contends that the
    district court erred in denying his motion seeking the recusal
    of the district court as a result of an ex parte communication
    with the prosecution.
    In this case, the district court concluded that it need not
    recuse itself, because Thompson could not show prejudice even
    if he could show that the alleged communication occurred.
    We agree that this was not the correct framework to analyze
    Thompson’s claim.
    [4,5] Thompson claimed that the district court and coun-
    sel for the State engaged in an ex parte communication. An
    ex parte communication occurs when a judge communicates
    with any person concerning a pending or impending proceed-
    ing without notice to an adverse party.5 A judge who initiates
    or invites and receives an ex parte communication concern-
    ing a pending or impending proceeding must recuse him-
    self or herself from the proceedings when a litigant requests
    such recusal.6
    [6] In addition to recusal based upon an ex parte commu-
    nication, a judge should also recuse himself or herself when
    a litigant demonstrates that a reasonable person who knew the
    circumstances of the case would question the judge’s impar-
    tiality under an objective standard of reasonableness, even
    though no actual bias or prejudice was shown.7
    Because Thompson alleged an ex parte communication and
    not bias or prejudice, the district court erred insofar as it found
    Thompson could not show that the court was prejudiced. But
    because Thompson failed to meet his burden to show that there
    was an ex parte communication, there was still no error in the
    district court’s decision to deny the motion to recuse.
    5
    State v. Thomas, supra note 2.
    6
    Id.
    7
    
    Id. - 479
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. THOMPSON
    Cite as 
    301 Neb. 472
    The district court’s statement that were the child to die, it
    “presumed that the State would amend the charges . . . accord-
    ingly,” was the primary basis of Thompson’s assertion of an
    ex parte communication. But the prosecutor offered an affida-
    vit stating that no ex parte communication occurred, and the
    district court made no such finding either. While its finding
    could have been more clear, implicit in the court’s order was
    that it only “presumed” that the child’s death would result in
    an amendment of the charges. There is no merit to Thompson’s
    first assignment of error.
    Suppression of Blood Test Results.
    In his second assignment of error, Thompson contends that
    the affidavit supporting the issuance of the search warrant
    allowing the blood draw did not establish probable cause. And
    in his third and final assignment of error, Thompson assigns
    that the district court erred in denying his motion to suppress
    the blood draw based upon Franks v. Delaware.8
    We need not address the questions raised about the suppres-
    sion of the blood draw under either the Fourth Amendment or
    Franks, because we conclude that any admission of the blood
    draw results was harmless error.
    [7,8] Harmless error jurisprudence recognizes that not all
    trial errors, even those of constitutional magnitude, entitle a
    criminal defendant to the reversal of an adverse trial result.9 It
    is only prejudicial error, that is, error which cannot be said to
    be harmless beyond a reasonable doubt, which requires that a
    conviction be set aside.10
    [9,10] When determining whether an alleged error is so prej-
    udicial as to justify reversal, courts generally consider whether
    the error, in light of the totality of the record, influenced the
    outcome of the case.11 In other words, harmless error review
    8
    Franks v. Delaware, supra note 1.
    9
    State v. Kidder, 
    299 Neb. 232
    , 
    908 N.W.2d 1
    (2018).
    10
    
    Id. 11 Id.
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    STATE v. THOMPSON
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    looks to the basis on which the jury actually rested its verdict.12
    The inquiry is not whether in a trial that occurred without the
    error, a guilty verdict would surely have been rendered, but
    whether the actual guilty verdict rendered was surely unattrib-
    utable to the error.13
    In this case, there is a significant amount of evidence that
    Thompson was under the influence. He fled from the scene
    of the collision and stopped at a park, where an officer wit-
    nessed him discarding both empty and full bottles of alcohol
    and beer as his children sat injured in the back seat of his
    vehicle. In addition, open beer cans and a bottle of whiskey
    were found in that vehicle. Thompson admitted that he had
    consumed a beer and two wine coolers about 2 hours before
    the collision.
    Also in Thompson’s vehicle was a bottle containing 12
    lorazepam pills. The label on the bottle indicated the prescrip-
    tion had been filled 6 days earlier and directed Thompson to
    take just one pill every 8 hours as needed. If taken as pre-
    scribed, there should have been approximately 42 pills left in
    the bottle. Thompson told officers at the time he was being
    interviewed—several hours after the collision—that he was
    still feeling the effects of the medications he had taken, which
    included lorazepam and Lyrica.
    In addition, there was testimony that Thompson smelled of
    alcohol, had bloodshot eyes, had slurred speech, and repeat-
    edly said that he was not “‘fucked up’” at a time when offi-
    cers were trying only to obtain biographical information for
    him and his children. Moreover, Thompson gave inconsistent
    explanations about where he was going at the time of the col-
    lision. Thompson also gave inconsistent details about his home
    address, variously indicating that he lived in Nebraska City,
    Nebraska, and in Fort Calhoun, Nebraska, when in fact his
    registered address was in Omaha.
    12
    
    Id. 13 Id.
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    STATE v. THOMPSON
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    301 Neb. 472
    Officers also testified that Thompson showed impairment
    during field sobriety tests. Though these tests might not have
    been performed correctly by the officers, there was testimony
    that the tests were still valid to identify signs of impairment.
    Finally, officers testified that based upon their observations
    over a 4-hour period, Thompson was intoxicated.
    There was an abundance of evidence offered that Thompson
    was intoxicated. On these facts, any error in the admission
    of the blood test results was harmless. There is no merit to
    Thompson’s second or third assignments of error.
    Plain Error in Sentencing.
    The State argued in its brief that the district court erred
    in sentencing Thompson to license revocations for his con-
    victions for counts 2, 3, and 5. At oral arguments, the State
    further noted that it believed the district court erred in failing
    to sentence Thompson to indeterminate sentences on counts 2
    and 3.
    Thompson was sentenced for his convictions to 12 to 15
    years’ imprisonment on count 1, driving under the influence,
    a Class IIA felony; 3 years’ imprisonment on count 2, child
    abuse resulting in serious bodily injury, a Class II felony;
    3 years’ imprisonment on count 3, also the Class II felony
    of child abuse resulting in serious bodily injury; 1 year’s
    imprisonment on count 4, child abuse, a Class IIIA felony;
    and 3 years’ imprisonment on count 5, leaving the scene of
    a personal injury accident resulting in serious bodily injury,
    a Class III felony. The district court additionally revoked
    Thompson’s operator’s license in connection with his convic-
    tions on counts 1, 2, 3, and 5.
    We turn first to the argument made by the State in its brief,
    that the operator’s license revocations for the convictions on
    counts 2 and 3 were plain error. We agree.
    Neb. Rev. Stat. § 60-6,197.03(9) (Cum. Supp. 2016) autho-
    rizes a 15-year license revocation for driving under the influ-
    ence, fifth offense, and Neb. Rev. Stat. § 60-698(2) (Cum.
    Supp. 2016) authorizes the same for leaving the scene of a
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    personal injury accident. But there is no authorization in state
    law for such a revocation for child abuse convictions.14 We
    therefore agree with the State that these revocations consti-
    tuted plain error.
    We turn next to the State’s assertion at oral argument that
    the determinate sentences imposed for counts 2 through 5
    were not authorized. The basis for this contention is Neb. Rev.
    Stat. §§ 29-2204 (Supp. 2017) and 29-2204.02 (Reissue 2016).
    Section 29-2204 provides in relevant part:
    (1) Except when a term of life imprisonment is required
    by law, in imposing a sentence upon an offender for any
    class of felony other than a Class III, IIIA, or IV felony,
    the court shall fix the minimum and the maximum terms
    of the sentence to be served within the limits provided
    by law. The maximum term shall not be greater than the
    maximum limit provided by law, and:
    (a) The minimum term fixed by the court shall be any
    term of years less than the maximum term imposed by the
    court; or
    (b) The minimum term shall be the minimum limit
    provided by law.
    And § 29-2204.02(4) provides:
    For any sentence of imprisonment for a Class III, IIIA,
    or IV felony for an offense committed on or after August
    30, 2015, imposed consecutively or concurrently with
    (a) a sentence for a Class III, IIIA, or IV felony for an
    offense committed prior to August 30, 2015, or (b) a sen-
    tence of imprisonment for a Class I, IA, IB, IC, ID, II, or
    IIA felony, the court shall impose an indeterminate sen-
    tence within the applicable range in section 28-105 that
    does not include a period of post-release supervision, in
    accord­ance with the process set forth in section 29-2204.
    We recently explained the distinction between determinate
    and indeterminate sentences:
    14
    See Neb. Rev. Stat. § 28-707 (Reissue 2016).
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    A determinate sentence is imposed when the defendant
    is sentenced to a single term of years, such as a sentence
    of 2 years’ imprisonment. . . . In contrast, when impos-
    ing an indeterminate sentence, a sentencing court ordi-
    narily articulates either a minimum term and maximum
    term or a range of time for which a defendant is to be
    incarcerated. In Nebraska, the fact that the minimum
    term and maximum term of a sentence are the same
    does not affect the sentence’s status as an indeterminate
    sentence.15
    When read together and applied to these facts, §§ 29-2204(1)
    and 29-2204.02(4) require Thompson to be sentenced to inde-
    terminate sentences on all five counts. Under § 29-2204, a
    defendant convicted of a Class IIA felony, as Thompson was
    for driving under the influence, fifth offense, must be sen-
    tenced to an indeterminate sentence. Thompson was sentenced
    to 12 to 15 years’ imprisonment for driving under the influ-
    ence, and thus, this sentence was correct.
    But the sentences imposed for Thompson’s convictions on
    counts 2 and 3, both counts of child abuse resulting in seri-
    ous bodily injury, a Class II felony, were not indeterminate as
    required under § 29-2204.02; rather, Thompson was sentenced
    to a determinate sentence of 3 years’ imprisonment for each
    count. These sentences were plain error.
    Moreover, § 29-2204.02(4) provides that for “any sen-
    tence of imprisonment for a Class III, IIIA, or IV felony . . .
    imposed consecutively or concurrently with . . . a sentence of
    imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony,
    the court shall impose an indeterminate sentence within the
    applicable range.” In count 4, Thompson was convicted of
    child abuse, a Class IIIA felony, and was sentenced to a deter-
    minate sentence of 1 year’s imprisonment. In count 5, he was
    convicted of leaving the scene of a personal injury accident, a
    15
    State v. Artis, 
    296 Neb. 172
    , 179, 
    893 N.W.2d 421
    , 427-28 (2017),
    modified on denial of rehearing 
    296 Neb. 606
    , 
    894 N.W.2d 349
    .
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    Class III felony, and was sentenced to a determinate sentence
    of 3 years’ imprisonment. But because these sentences were
    imposed consecutively with Thompson’s Class II and Class
    IIA felonies, these sentences should have also been indetermi-
    nate. We therefore find plain error in these sentences.
    Given this plain error, we vacate Thompson’s sentences
    for his convictions on counts 2 through 5 in their entirety and
    remand those counts for resentencing.
    CONCLUSION
    We vacate the sentences imposed for Thompson’s convic-
    tions on counts 2 through 5 in their entirety. We otherwise
    affirm the judgments and convictions of the district court and
    remand this cause to the district court for resentencing on
    counts 2 through 5.
    A ffirmed in part, and in part vacated
    and remanded for resentencing.