State v. Miller ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2022 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. MILLER
Cite as 312 Neb. 17State of Nebraska, appellee, v.
Dustin L. Miller, appellant.
___ N.W.2d ___
Filed July 22, 2022. No. S-21-343.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press evidence 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 trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination. And where the facts are largely
undisputed, the ultimate question is an issue of law.
2. Confessions: Appeal and Error. A district court’s finding and determi-
nation that a defendant’s statement was voluntarily made will not be set
aside on appeal unless this determination is clearly erroneous.
3. Motions to Suppress: Appeal and Error. In determining whether a
trial court’s findings on a motion to suppress are clearly erroneous, the
reviewing court recognizes the trial court as the trier of fact and takes
into consideration that the trial court has observed the witnesses testify-
ing regarding the motion.
4. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact. The relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
5. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. MILLER
Cite as 312 Neb. 176. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
7. Constitutional Law: Search and Seizure: Blood, Breath, and Urine
Tests. The drawing of blood from a person’s body for the purpose of
administering blood tests is a search of the person subject to Fourth
Amendment constraints.
8. Constitutional Law: Search and Seizure: Warrantless Searches.
Both the Fourth Amendment to the U.S. Constitution and article I, § 7,
of the Nebraska Constitution guarantee against unreasonable searches
and seizures. Searches without a valid warrant are per se unreason-
able, subject only to a few specifically established and well-delineated
exceptions.
9. Warrantless Searches. The warrantless search exceptions Nebraska has
recognized include: (1) searches undertaken with consent, (2) searches
under exigent circumstances, (3) inventory searches, (4) searches of
evidence in plain view, and (5) searches incident to a valid arrest.
10. Warrantless Searches: Proof. It is the State’s burden to show that a
search falls within an exception to the warrant requirement.
11. Warrantless Searches: Police Officers and Sheriffs: Time. As a
general matter, the exigent circumstances exception allows a warrant-
less search when an emergency leaves police insufficient time to seek a
warrant.
12. Convictions: Confessions: Due Process. A defendant in a criminal case
is deprived of due process of law if his or her conviction is founded, in
whole or in part, upon an involuntary confession, without regard for the
truth or falsity of the confession.
13. Confessions: Police Officers and Sheriffs: Proof. Under Jackson v.
Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), trial
courts must institute fair procedures to determine whether a confession
is voluntary, because involuntary or coerced confessions cannot be intro-
duced into evidence. At such a hearing, the State has the burden to prove
a defendant’s statement was voluntary and not coerced. In making this
determination, a totality of the circumstances test is applied, and factors
to consider include the tactics used by the police, the details of the inter-
rogation, and any characteristics of the accused that might cause his or
her will to be easily overborne.
14. Confessions: Police Officers and Sheriffs. Coercive police activity is a
necessary predicate to a finding that a confession is not voluntary.
15. Confessions. The question for purposes of a hearing under Jackson
v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), is
whether an admission or confession was voluntary, not whether it was
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. MILLER
Cite as 312 Neb. 17true, so questions going to the substance of a statement generally fall
outside the scope of such hearing.
16. Trial: Evidence. The rule of completeness is concerned with the dan-
ger of admitting a statement out of context, and when this danger is
not present, it is not an abuse of discretion for the trial court to fail to
require the production of the remainder of the document or statement.
17. Trial: 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
would surely have been rendered, but, rather, whether the actual guilty
verdict rendered in the questioned trial was surely unattributable to
the error.
18. Trial: Convictions: Evidence. When the evidence is cumulative and
there is other competent evidence to support the conviction, the improper
admission or exclusion of evidence is harmless beyond a reasonable
doubt.
19. Drunk Driving: Convictions: Circumstantial Evidence. One accused
of a crime, including the crime of driving under the influence, may be
convicted on the basis of circumstantial evidence if, taken as a whole,
the evidence established guilt beyond a reasonable doubt.
20. Sentences. The sentencing court is not limited to any mathematically
applied set of factors, but the appropriateness of the sentence is neces-
sarily a subjective judgment that includes the sentencing judge’s obser-
vations of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life.
21. ____. When imposing a sentence, the sentencing judge should consider
the defendant’s (1) age, (2) mentality, (3) education and experience, (4)
social and cultural background, (5) past criminal record or record of
law-abiding conduct, and (6) motivation for the offense, as well as (7)
the nature of the offense, and (8) the amount of violence involved in the
commission of the crime.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
Todd Molvar 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.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. MILLER
Cite as 312 Neb. 17Stacy, J.
After a jury trial, Dustin L. Miller was convicted and sen-
tenced for driving under the influence (DUI), fourth offense,
and driving during revocation, second offense. In this direct
appeal, he contends the trial court erred by failing to suppress
the results of a warrantless blood test and by making certain
evidentiary rulings regarding statements Miller made to police.
He also contends there was insufficient evidence to support his
convictions, and he argues his sentences are excessive. Finding
no merit to Miller’s assigned errors, we affirm.
I. BACKGROUND
On or about February 25, 2020, police discovered Miller
lying unconscious in a ditch at the scene of a single-vehicle
accident. Miller was transported by ambulance to a hospital,
where medical staff performed a warrantless blood draw, at
the request of police. The test result showed that Miller had a
blood alcohol content of .254 grams of alcohol per 100 mil-
liliters of blood.
In November 2020, Miller was charged with DUI, .15 or
over, with three prior convictions (a Class IIA felony), and
driving during revocation, subsequent offense (a Class IIA
felony).
1. Motion to Suppress
Miller moved to suppress the results of the blood test, argu-
ing the warrantless blood draw was an unconstitutional search
in violation of the U.S. and Nebraska Constitutions. Officer
Zachary Kliegl testified at the suppression hearing.
Kliegl testified that at approximately 1 a.m. on February
25, 2020, he was on duty and driving eastbound near 40th
Street and Highway 2 in Lincoln, Nebraska. He noticed a
pickup truck in the ditch on the southeast corner of the inter-
section that looked like it had collided with a streetlight and
rolled into the ditch. Kliegl activated his cruiser’s overhead
lights and stopped to inspect the accident. He determined the
pickup truck was heavily damaged, unoccupied, and smelled
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. MILLER
Cite as 312 Neb. 17of alcohol. He observed debris scattered nearby, including an
open can of beer.
Kliegl eventually discovered Miller lying in the ditch under
some debris, approximately 100 feet west of the vehicle. Miller
appeared to be in and out of consciousness. Kliegl asked
Miller “if he was okay and if there was anybody else that was
in the vehicle with him.” Miller moaned or grunted something
in response, which Kliegl interpreted as a “yes.” Based on that
response, Kliegl walked back toward the vehicle to search for
others who might be injured. He did not find anyone else, so
he returned to Miller and asked again whether there were oth-
ers in the vehicle. This time, Miller responded that he was the
only one in the vehicle. The events at the accident scene were
recorded by a video camera in Kliegl’s cruiser.
Miller was transported to a hospital by ambulance, and
Kliegl followed in his cruiser, leaving other officers at the
scene. When Kliegl arrived at the hospital, staff were preparing
to take Miller for x rays. Kliegl waited in the hospital room
until Miller was returned. At that point, Miller was snoring and
unresponsive. Medical personnel informed Kliegl that Miller
had fractured vertebrae in his neck and back, and it was neces-
sary to commence medical treatment “right away,” including
administering fluids that could possibly alter his blood alco-
hol content.
Kliegl had formed an opinion that Miller was operating a
motor vehicle while under the influence of alcohol. His opin-
ion was based on Miller’s general condition when discovered,
as well as the facts that Miller was the only one found at the
accident scene, a preliminary investigation showed the pickup
truck was registered to Miller’s mother, an open beer can was
found at the scene, and Kliegl smelled alcohol on Miller and in
the pickup truck at the scene. Kliegl testified that in his experi-
ence, obtaining a warrant for a blood draw could take around 3
hours. He did not think he had enough time to obtain a warrant
under the circumstances, due to the extent of Miller’s injuries
and the need for medical staff to treat him with fluids that
could affect his blood alcohol content.
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Nebraska Supreme Court Advance Sheets
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STATE V. MILLER
Cite as 312 Neb. 17Kliegl directed medical staff to perform a blood draw on
Miller immediately, and they did so. Before the blood draw,
Kliegl read aloud the standard consent for blood draw, but
Miller was not conscious at the time, and there is no contention
that Miller actually consented to the blood draw.
On cross-examination, Kliegl testified that he was aware a
county court judge was always on call to review requests for
warrants and that he was aware the hospital had a substation he
could have used to draft such a request. He also testified that
he was not working the accident alone; two other officers were
with him at the hospital, and other officers were present at the
accident scene.
Based on the evidence adduced at the suppression hear-
ing, the State argued the warrantless blood draw was validly
obtained because the situation triggered the exigent circum-
stances exception to the Fourth Amendment. 1 The defense dis-
agreed, arguing that even though Miller was unconscious, law
enforcement could have, and should have, obtained a warrant
for Miller’s blood sample.
The district court made an express finding that Kliegl’s
testimony was credible and that it established the existence of
exigent circumstances which justified the warrantless blood
draw. The court therefore overruled the motion to suppress and
ordered Miller to appear for trial in approximately 2 weeks.
2. Jackson v. Denno
Miller filed a pretrial motion requesting a Jackson v. Denno 2
hearing to determine whether the State intended to offer evi-
dence of any admissions or confessions Miller made to law
enforcement officers and, if so, to hold an evidentiary hearing
to determine admissibility. The motion was taken up just prior
to Kliegl’s testimony at trial, outside the presence of the jury.
1
See, Mitchell v. Wisconsin, ___ U.S. ___, 139 S. Ct. 2525, 204 L. Ed. 2d
1040 (2019); Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L.
Ed. 2d 696 (2013); State v. Briggs, 308 Neb. 84, 953 N.W.2d 41 (2021).
2
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. MILLER
Cite as 312 Neb. 17The State advised the court that it intended to offer evidence
of Miller’s statements to Kliegl at the scene, and it proceeded
to offer evidence regarding such statements. Kliegl testified
that he asked Miller several questions at the scene, includ-
ing “if he was okay,” “if he was the driver of the vehicle,”
and “if he was injured.” Kliegl described that initially, Miller
was “just, like, kind of groaning” in response to the questions.
When Kliegl asked Miller if there was anyone else in the vehi-
cle with him, he “believe[d] it sounded like [Miller] said, yes.”
But after searching and finding no one else at the accident
scene, Kliegl asked Miller again whether there was anyone else
in the vehicle with him. This time, Miller gave what Kliegl
described as a “more definite answer,” indicating that no one
was with him. Kliegl was not sure whether Miller understood
his questions initially, but he believed that Miller understood
the question being asked when he responded more definitively
that there was nobody else in the vehicle. Kliegl testified that
he did not make any threats or promises to get Miller to speak
with him at the scene and that Miller appeared to be speaking
freely and voluntarily.
The audio-video recorder in Kliegl’s cruiser captured
Kliegl’s questions and Miller’s responses at the accident scene,
and the recording was received into evidence and played for
the court. That exhibit shows Kliegl arriving on the scene,
and he can be heard asking Miller several questions including,
“You alright?”; “[A]nybody else with you?”; and “[W]hat’s
your name?” Miller responded to these questions with an audi-
ble groan. Kliegl asked again, “Did you have a passenger with
you?” Miller responded with two short moans, to which Kliegl
replied, “You did? Male? Female?” and Miller moaned again
in response. About 1 minute later, Kliegl returned and asked,
“My man . . . [w]as anybody else in the truck with you?”
This time Miller responded, “What?” and then replied, “No.”
Kliegl then confirmed, “No? Just you?” Miller responded with
a moan.
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Nebraska Supreme Court Advance Sheets
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STATE V. MILLER
Cite as 312 Neb. 17After reviewing the exhibit, the court ruled from the bench.
As to Miller’s responses of “What?” and “No” to Kliegl’s
question about whether anyone else was in the pickup truck
with him, the court found that Miller made the statements,
that he understood what he was saying, and that the statements
were freely and voluntarily made under all the circumstances
and were not the product of any coercion, promise, or induce-
ment, direct or indirect.
After the court’s ruling, the State sought clarification about
Miller’s other responses and whether the entire video exhibit
could be played for the jury. The court stated, “You’ll have to
redact those other statements, as I cannot make a determination
that [Miller] understood what he was saying when he made
[the] initial statements.” In response to the court’s clarification,
Miller told the court that he had no objection to the earlier
responses, and he asked to be allowed to publish the entire
video exhibit to the jury pursuant to the rule of completeness. 3
The court refused that request.
3. Jury Trial
The evidence adduced at trial was consistent with that
described above. In addition, Kliegl testified that Miller was
the only person he discovered at the accident scene and that no
one else was observed walking near the accident scene. He also
testified that when other officers arrived to assist, a search was
made for other individuals and none were found.
Kliegl also testified that in his opinion, based on the evi-
dence and his observations and training, Miller was under the
influence of alcohol at the time of the accident. The parties
stipulated that Miller’s operator’s license had been revoked
for a period of 15 years, from December 6, 2016, to December
6, 2031.
At the start of trial, Miller made a continuing objection to
“Kliegl testifying or a video being played where . . . Miller
3
Neb. Rev. Stat. § 27-106 (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
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STATE V. MILLER
Cite as 312 Neb. 17admits to being the driver of the vehicle at issue in this
case.” This objection was overruled. When the State offered
a redacted copy of Kliegl’s cruiser’s video containing only
Miller’s statement that nobody else was in the vehicle with
him, Miller objected based on the “involuntariness” of the
statement. He also objected to the court’s refusal to allow the
unredacted video under the rule of completeness. The objec-
tions were overruled, and the redacted exhibit was received and
played for the jury. Miller then made an offer of proof which
included the unredacted video.
During trial, Kliegl testified, without objection, about what
Miller said at the accident scene. Kliegl testified that when he
initially asked Miller if there was someone else in the vehicle,
Miller responded with “like a grunt, like towards a yes.” Kliegl
then testified that when he asked the same question again
later, Miller responded with “just a definitive ‘No.’” On cross-
examination, Kliegl admitted that the first few times he asked
Miller questions at the scene, “all [he got] back [were] unintel-
ligible moans.”
When the State offered the result of Miller’s blood test into
evidence, Miller objected based on the prior motion to sup-
press. The court overruled the objection, and the test result was
received into evidence. The parties stipulated that the blood
test was otherwise properly obtained and maintained in compli-
ance with “Title 177.”
At the conclusion of the State’s evidence, Miller moved
for a directed verdict on both counts. The court overruled the
motion. Miller did not testify, and he put on no evidence. A
jury instruction conference was held, and there were no objec-
tions to the court’s instructions or the verdict forms.
Regarding the DUI charge, the jury was instructed that it
could return one of three possible verdicts: (1) not guilty, (2)
guilty of DUI and/or when having a concentration of .08 of
1 gram or more by weight of alcohol per 100 milliliters of
blood, or (3) guilty of DUI while having a concentration of .15
of 1 gram or more by weight of alcohol per 100 milliliters of
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Nebraska Supreme Court Advance Sheets
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STATE V. MILLER
Cite as 312 Neb. 17blood. Additionally, with respect to Miller’s statements to law
enforcement, the jury was instructed:
There has been evidence that [Miller] made a statement
to a law enforcement officer. You may rely on any such
statement only if you decide beyond a reasonable doubt
with regard to each statement:
(1) that [Miller] made the statement; and
(2) that [Miller] understood what he was saying; and
(3) that the statement was freely and voluntarily made
under all the circumstances surrounding its making.
If you decide that the State did not prove these three
things beyond a reasonable doubt, then you must disre-
gard the statement, even if you think it is true.
In closing, the defense argued there was insufficient evi-
dence that Miller was operating the vehicle when it crashed
and that without such evidence, Miller could not be convicted
of either charge. The defense also emphasized Kliegl’s testi-
mony that Miller was “moaning [and] not making very much
sense,” and it argued the State had failed to prove beyond a
reasonable doubt that Miller understood what he was say-
ing when he told Klieigl that he was the only person in
the vehicle.
4. Verdicts and Sentencing
The jury returned a verdict finding Miller guilty of non-
aggravated DUI (blood alcohol content of .08 or more). It
also found him guilty of driving during revocation. After an
enhancement hearing at which the State proved Miller had
three prior DUI convictions and one prior conviction for driv-
ing during revocation, Miller was found guilty of DUI, fourth
offense, and driving during revocation, second offense. He was
sentenced to imprisonment for not less than 3 years nor more
than 3 years on the DUI conviction and to a consecutive term
of imprisonment for 3 to 5 years on the conviction for driv-
ing during revocation, subsequent offense. Miller’s operator’s
license was revoked for a period of 15 years following his
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. MILLER
Cite as 312 Neb. 17release from incarceration, and he was authorized to obtain an
ignition interlock permit after 2 years.
Miller filed this timely appeal, which we moved to our
docket on our own motion. 4
II. ASSIGNMENTS OF ERROR
Miller assigns, restated, that the district court erred in (1)
overruling his motion to suppress, (2) finding that any of his
statements at the accident scene were made freely and volun-
tarily, (3) overruling his request to admit excluded statements
under the rule of completeness, (4) finding the evidence was
sufficient to sustain his convictions, and (5) abusing its discre-
tion by imposing excessive sentences.
III. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth
Amendment, we apply a two-part standard of review. 5
Regarding historical facts, we review the trial court’s findings
for clear error, but whether those facts trigger or violate Fourth
Amendment protections is a question of law that we review
independently of the trial court’s determination. 6 And where
the facts are largely undisputed, the ultimate question is an
issue of law. 7
[2,3] A district court’s finding and determination that a
defendant’s statement was voluntarily made will not be set
aside on appeal unless this determination is clearly erroneous. 8
In determining whether a trial court’s findings on a motion to
suppress are clearly erroneous, the reviewing court recognizes
4
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2020).
5
State v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021).
6
Id.7
State v. Salvador Rodriguez, 296 Neb. 950, 898 N.W.2d 333 (2017); State
v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).
8
State v. Garner, 260 Neb. 41, 614 N.W.2d 319 (2000).
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STATE V. MILLER
Cite as 312 Neb. 17the trial court as the trier of fact and takes into consideration
that the trial court has observed the witnesses testifying regard-
ing the motion. 9
[4] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. 10 The relevant question
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. 11
[5,6] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. 12 A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying a just result in matters submitted for disposition. 13
IV. ANALYSIS
1. Motion to Suppress
In his first assignment of error, Miller argues the district
court should have granted his motion to suppress the results of
the warrantless blood test.
[7-9] It has long been recognized that the drawing of
blood from a person’s body for the purpose of administer-
ing blood tests is a search of the person subject to Fourth
9
State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).
10
State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022); State v. Williams,
306 Neb. 261, 945 N.W.2d 124 (2020).
11
Id.12
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
13
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Nebraska Supreme Court Advance Sheets
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STATE V. MILLER
Cite as 312 Neb. 17Amendment constraints. 14 Both the Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska
Constitution guarantee against unreasonable searches and sei-
zures. 15 Searches without a valid warrant are per se unrea-
sonable, subject only to a few specifically established and
well-delineated exceptions. 16 The warrantless search exceptions
Nebraska has recognized include: (1) searches undertaken with
consent, (2) searches under exigent circumstances, (3) inven-
tory searches, (4) searches of evidence in plain view, and (5)
searches incident to a valid arrest. 17
[10,11] It is the State’s burden to show that a search falls
within an exception to the warrant requirement. 18 In this case,
the State relies exclusively on the exigent circumstances excep-
tion to justify the reasonableness of the warrantless blood
draw. As a general matter, the exigent circumstances exception
allows a warrantless search when an emergency leaves police
insufficient time to seek a warrant. 19 Miller contends the State
failed to meet its burden to prove exigent circumstances on
this record, basically arguing that Kliegl and the other officers
had sufficient time to secure a search warrant, and should have
done so.
In the context of a warrantless blood draw in a DUI case,
this court has discussed, 20 but not previously applied, the
14
Modlin, supra note 7. See, also, Birchfield v. North Dakota, 579 U.S. 438,
136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016); McNeely, supra note 1; Skinner
v. Railway Labor Executives’ Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L.
Ed. 2d 639 (1989); Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826,
16 L. Ed. 2d 908 (1966).
15
Briggs, supra note 1.
16
Id.17
Id.18
E.g., id.19
See, Birchfield, supra note 14; McNeely, supra note 1. See, also, State v.
Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).
20
See State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017) (noting
exigent circumstances may authorize warrantless blood test).
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STATE V. MILLER
Cite as 312 Neb. 17exigent circumstances exception. Both parties rely on U.S.
Supreme Court precedent applying the exigent circumstances
exception in this context. We summarize those cases before
analyzing the parties’ arguments.
(a) Schmerber v. California
The U.S. Supreme Court first addressed exigent cir-
cumstances and warrantless blood draws in Schmerber v.
California, 21 decided in 1966. In Schmerber, the defendant
was injured in an automobile accident and taken to a hospital.
At the direction of a police officer, a blood sample was taken
from the defendant, which showed he was intoxicated. At his
DUI trial, the defendant objected to the admission of the blood
test results, arguing it violated his Fourth Amendment right to
be free from an unreasonable search and seizure. Schmerber
held the blood draw was a search “within the meaning of [the
Fourth] Amendment,” 22 and it concluded the “questions we
must decide” are “whether the police were justified in requir-
ing petitioner to submit to the blood test” and “whether the
means and procedures employed in taking his blood respected
relevant Fourth Amendment standards of reasonableness.” 23
In this respect, Schmerber noted there was probable cause
to arrest the defendant for DUI, because the arresting officer
smelled alcohol on his breath and noticed his eyes were blood-
shot and watery. It also found, “The officer in the present case
. . . might reasonably have believed that he was confronted
with an emergency, in which the delay necessary to obtain a
warrant, under the circumstances, threatened ‘the destruction of
evidence.’” 24 The Court then stated:
We are told that the percentage of alcohol in the blood
begins to diminish shortly after drinking stops, as the body
21
Schmerber, supra note 14.
22
Id., 384 U.S. at 767.
23
Id., 384 U.S. at 768.
24
Id., 384 U.S. at 770.
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STATE V. MILLER
Cite as 312 Neb. 17functions to eliminate it from the system. Particularly in
a case such as this, where time had to be taken to bring
the accused to a hospital and to investigate the scene of
the accident, there was no time to seek out a magistrate
and secure a warrant. Given these special facts, we con-
clude that the attempt to secure evidence of blood-alcohol
content in this case was an appropriate incident to peti-
tioner’s arrest. 25
The Court in Schmerber emphasized that although it found no
violation of the Fourth Amendment, it “reach[ed] this judgment
only on the facts of the present record.” 26
After Schmerber, a split of authority developed on whether
the natural dissipation of alcohol in the bloodstream established
a per se exigency that sufficed, on its own, to justify warrant-
less blood tests in DUI investigations. 27 The U.S. Supreme
Court granted certiorari in Missouri v. McNeely 28 to “resolve
[that] split.” 29
(b) Missouri v. McNeely
In McNeely, the Supreme Court rejected the suggestion that
the natural metabolization of alcohol in the bloodstream pre­
sents a per se exigency that justifies an exception to the Fourth
Amendment’s warrant requirement for nonconsensual blood
testing in all drunk driving cases. The Court explained:
25
Id., 384 U.S. at 770-71.
26
Id., 384 U.S. at 772.
27
Compare, e.g., State v. Johnson, 744 N.W.2d 340 (Iowa 2008) (holding
Schmerber did not stand for proposition that loss of evidence through
dissipation of alcohol from suspect’s body was sufficient exigency alone
to justify warrantless blood draw), and State v. Rodriguez, 156 P.3d 771(Utah 2007) (same), with State v. Shriner, 751 N.W.2d 538 (Minn. 2008)
(holding natural dissipation of blood alcohol evidence alone constitutes
per se exigency under Schmerber) and State v. Bohling, 173 Wis. 2d 529,
494 N.W.2d 399 (1993) (same).
28
McNeely, supra note 1.
29
Id., 569 U.S. at 147.
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Cite as 312 Neb. 17It is true that as a result of the human body’s natural
metabolic processes, the alcohol level in a person’s blood
begins to dissipate once the alcohol is fully absorbed and
continues to decline until the alcohol is eliminated. . . .
Regardless of the exact elimination rate, it is sufficient for
our purposes to note that because an individual’s alcohol
level gradually declines soon after he stops drinking, a
significant delay in testing will negatively affect the pro-
bative value of the results. This fact was essential to our
holding in Schmerber, as we recognized that, under the
circumstances, further delay in order to secure a warrant
after the time spent investigating the scene of the accident
and transporting the injured suspect to the hospital to
receive treatment would have threatened the destruction
of evidence. . . .
But it does not follow that we should depart from care-
ful case-by-case assessment of exigency and adopt the
categorical rule proposed by the State and its amici. In
those drunk-driving investigations where police officers
can reasonably obtain a warrant before a blood sample
can be drawn without significantly undermining the effi-
cacy of the search, the Fourth Amendment mandates that
they do so. . . . We do not doubt that some circumstances
will make obtaining a warrant impractical such that the
dissipation of alcohol from the bloodstream will support
an exigency justifying a properly conducted warrantless
blood test. That, however, is a reason to decide each
case on its facts, as we did in Schmerber, not to accept
the “considerable overgeneralization” that a per se rule
would reflect. 30
The McNeely majority thus declined to adopt a per se rule
regarding exigency, reasoning that doing so would be incon-
sistent with the “careful case-by-case assessment of exigency”
30
Id., 569 U.S. at 152-53, quoting Richards v. Wisconsin, 520 U.S. 385, 117
S. Ct. 1416, 137 L. Ed. 2d 615 (1997).
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Cite as 312 Neb. 17required by the totality of the circumstances test. 31 “In short,”
the McNeely majority held, “while the natural dissipation of
alcohol in the blood may support a finding of exigency in
a specific case, as it did in Schmerber, it does not do so
categorically.” 32
Justice Thomas dissented in McNeely, reasoning that “[t]he
rapid destruction of evidence acknowledged by the parties,
the majority, and Schmerber’s exigency determination occurs
in every situation where police have probable cause to arrest
a drunk driver.” 33 The dissent urged the Court to adopt a rule
recognizing that “the natural metabolization of blood alcohol
concentration (BAC) creates an exigency once police have
probable cause to believe the driver is drunk.” 34
(c) Mitchell v. Wisconsin
In the 2019 case of Mitchell v. Wisconsin, 35 the U.S. Supreme
Court considered how the exigent circumstances exception
applies when a suspected drunk driver is unconscious and
therefore cannot be given a standard breath test. In Mitchell,
the police received a report that the defendant, appearing to
be very intoxicated, had gotten into a vehicle and driven off.
Police found the defendant wandering near a lake, and a pre-
liminary breath test showed his blood alcohol level was triple
the legal limit for driving. He was arrested and transported to a
police station for additional testing.
During transport, the defendant became lethargic and eventu-
ally lost consciousness, so police took him to a hospital. Once
there, police read aloud the standard advisement and directed
the medical staff to draw a blood sample for testing. The sam-
ple was drawn approximately 90 minutes postarrest, and the
31
McNeely, supra note 1, 569 U.S. at 152.
32
Id., 569 U.S. at 156.
33
Id., 569 U.S. at 178 (Thomas, J., dissenting).
34
Id.35
Mitchell, supra note 1.
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Cite as 312 Neb. 17defendant remained unconscious while the sample was taken.
Test results showed the defendant’s blood alcohol content was
.222. He was charged and convicted of drunk driving offenses
after unsuccessfully moving to suppress the results of the blood
test. The Wisconsin Supreme Court affirmed his convictions,
and the U.S. Supreme Court granted certiorari, describing the
issue as “how the [exigent circumstances] exception bears on
the category of cases . . . involving unconscious drivers.” 36
Writing for the four-justice plurality, Justice Alito described the
issue and the holding as follows:
Today, we consider what police officers may do
in a narrow but important category of cases: those in
which the driver is unconscious and therefore cannot be
given a breath test. In such cases, we hold, the exigent-
circumstances rule almost always permits a blood test
without a warrant. 37
Justice Thomas concurred with the plurality’s holding, reiterat-
ing his position in McNeely that the natural metabolization of
alcohol in the bloodstream creates an exigency per se whenever
there is probable cause to believe a driver is drunk.
The Mitchell plurality reasoned that the facts of cases involv-
ing unconscious drivers sat “much higher than McNeely on the
exigency spectrum,” reasoning that the defendant’s medical
condition “heightened the urgency” of performing the blood
test. 38 It particularly noted that due to the defendant’s condi-
tion, he was unable to be subjected to the “‘standard eviden-
tiary breath test’” conducted at the police station: 39
When a breath test is impossible, enforcement of the
drunk-driving laws depends upon the administration of
a blood test. And when a police officer encounters an
unconscious driver, it is very likely that the driver would
36
Id., 139 S. Ct. at 2534-35.
37
Id., 139 S. Ct. at 2531.
38
Id., 139 S. Ct. at 2533.
39
Id., 139 S. Ct. at 2534.
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Cite as 312 Neb. 17be taken to an emergency room and that his blood would
be drawn for diagnostic purposes even if the police were
not seeking BAC information. In addition, police officers
most frequently come upon unconscious drivers when
they report to the scene of an accident, and under those
circumstances, the officers’ many responsibilities—such
as attending to other injured drivers or passengers and
preventing further accidents—may be incompatible with
the procedures that would be required to obtain a warrant.
Thus, when a driver is unconscious, the general rule is
that a warrant is not needed. 40
Mitchell held there is a “‘compelling need’” for a blood test
of drunk driving suspects whose condition renders them unable
to perform the standard breath test. 41 And it emphasized that
although constant dissipation of blood alcohol levels is not
alone enough to create an exigency, it can be enough “when
combined with other pressing needs.” 42 The Mitchell plural-
ity explained that “exigency exists when (1) BAC evidence is
dissipating and (2) some other factor creates pressing health,
safety, or law enforcement needs that would take priority over
a warrant application.” 43 And it reasoned that both these condi-
tions are met when a drunk driving suspect is unconscious:
Indeed, unconsciousness does not just create pressing
needs; it is itself a medical emergency. It means that the
suspect will have to be rushed to the hospital or similar
facility not just for the blood test itself but for urgent
medical care. Police can reasonably anticipate that such a
driver might require monitoring, positioning, and support
on the way to the hospital; that his blood may be drawn
anyway, for diagnostic purposes, immediately on arrival;
and that immediate medical treatment could delay (or
40
Id., 139 S. Ct. at 2531.
41
Id., 139 S. Ct. at 2537.
42
Id.43
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Cite as 312 Neb. 17otherwise distort the results of) a blood draw conducted
later, upon receipt of a warrant, thus reducing its eviden-
tiary value. 44
And Mitchell further held:
When police have probable cause to believe a person
has committed a drunk-driving offense and the driver’s
unconsciousness or stupor requires him to be taken to the
hospital or similar facility before police have a reasonable
opportunity to administer a standard evidentiary breath
test, they may almost always order a warrantless blood
test to measure the driver’s BAC without offending the
Fourth Amendment. We do not rule out the possibility that
in an unusual case a defendant would be able to show that
his blood would not have been drawn if police had not
been seeking BAC information, and that police could not
have reasonably judged that a warrant application would
interfere with other pressing needs or duties. Because
Mitchell did not have a chance to attempt to make that
showing, a remand for that purpose is necessary. 45
With the holdings and reasoning from Schmerber, McNeely,
and Mitchell in mind, we turn next to whether the State suffi-
ciently proved exigent circumstances in this case. In doing so,
we consider both the evidence adduced at the motion to sup-
press and the evidence offered at trial. 46
(d) State Proved Exigent Circumstances
Here, the relevant facts are largely undisputed. Kliegl dis-
covered Miller lying in the ditch, surrounded by debris from
a rollover accident. Miller smelled of alcohol, the wrecked
vehicle smelled of alcohol, and an open can of beer was found
among the debris. Miller was in and out of consciousness at
44
Id., 139 S. Ct. at 2537-38.
45
Id., 139 S. Ct. at 2539.
46
State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019) (when motion
to suppress is denied pretrial and objection is preserved at trial, appellate
court considers all evidence from both trial and suppression hearings).
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Cite as 312 Neb. 17the scene and was transported to the hospital for emergency
medical care. At the hospital, Miller was unconscious and
not communicating. Kliegl was advised by medical staff that
Miller’s injuries were serious and required immediate medical
treatment, including treatment that could affect Miller’s blood
alcohol level. Based on Kliegl’s investigation, it was his opin-
ion that Miller had been operating a vehicle under the influ-
ence of alcohol. Kliegl did not think he had sufficient time
to obtain a warrant for a blood test, so he directed medical
staff to perform a blood draw for purposes of testing, which
they did.
The district court expressly found that the facts were as
testified to by Kliegl and that his testimony was credible in
all respects. We have reviewed those factual findings for clear
error, and find none. And when we independently consider
whether these facts support a finding of exigent circumstances
sufficient to support a warrantless blood draw, 47 we conclude
they do.
This case presents a textbook case of exigent circumstances
under Mitchell. As that case recognized, “[w]hen a breath test
is impossible, enforcement of the drunk-driving laws depends
upon the administration of a blood test.” 48 Here, there was no
evidence that officers attempted to administer a standardized
breath test to Miller either at the scene or at the hospital, but
the record strongly suggests this was so because Miller, like the
driver in Mitchell, was physically incapable of performing such
a test. He was in and out of consciousness at the accident scene
and was unconscious at the hospital. Miller’s unconsciousness
was itself a medical emergency, 49 and his need for immediate
medical treatment that could affect his blood alcohol level
created a pressing need to perform the blood draw immedi-
ately. Considering the totality of the circumstances, Kliegl
47
See Short, supra note 5.
48
Mitchell, supra note 1, 139 S. Ct. at 2531.
49
See Mitchell, supra note 1.
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Cite as 312 Neb. 17could reasonably have believed that he was confronted with
an emergency in which the delay necessary to obtain a warrant
for a blood draw would not only postpone necessary medical
treatment, but would also result in the threatened destruction
of evidence.
On this record, the district court did not err in finding
that exigent circumstances had been proved, and the war-
rantless blood test was reasonable for purposes of the Fourth
Amendment.
2. Jackson v. Denno
[12-14] A defendant in a criminal case is deprived of due
process of law if his or her conviction is founded, in whole
or in part, upon an involuntary confession, without regard for
the truth or falsity of the confession. 50 In Jackson v. Denno, 51
the U.S. Supreme Court held that a “defendant objecting to
the admission of a confession is entitled to a fair hearing in
which both the underlying factual issues and the voluntariness
of his confession are actually and reliably determined.” Trial
courts must institute fair procedures to determine whether a
confession is voluntary, because involuntary or coerced confes-
sions cannot be introduced into evidence. 52 At such a hearing,
the State has the burden to prove a defendant’s statement was
voluntary and not coerced. 53 In making this determination, a
totality of the circumstances test is applied, and factors to con-
sider include the tactics used by the police, the details of the
interrogation, and any characteristics of the accused that might
cause his or her will to be easily overborne. 54 And we have
50
Jackson v. Denno, supra note 2.
51
Id., 378 U.S. at 380. See, Dickerson v. United States, 530 U.S. 428, 120 S.
Ct. 2326, 147 L. Ed. 2d 405 (2000); State v. Seberger, 279 Neb. 576, 779
N.W.2d 362 (2010).
52
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016). See Jackson v.
Denno, supra note 2.
53
Garner, supra note 8.
54
State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).
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Cite as 312 Neb. 17repeatedly held that coercive police activity is a necessary
predicate to a finding that a confession is not voluntary. 55
Miller filed a motion pursuant to Jackson v. Denno seek-
ing a determination of the admissibility of “any admissions or
confessions” he made to law enforcement. At the hearing on
his motion, both Miller and the State asked the court to take an
“all or nothing” approach to any statements Miller made at the
accident scene. In other words, the parties asked the court to
determine that either all of Miller’s statements were voluntary
and admissible or none of them were. Presumably due to the
manner in which the issue was presented by the parties, the
district court considered the admissibility, under Jackson v.
Denno, of all of Miller’s responses to Kliegl’s questions at the
accident scene. This necessarily included what we will refer to
as Miller’s “initial responses” (described by Kliegl as groans
which he interpreted as statements that there were others in the
vehicle with him), as well as what we will refer to as Miller’s
“subsequent statements” (“What?” and “No”) in response to
the question asking whether there was somebody else in the
vehicle with him.
The court did not take the all-or-nothing approach the par-
ties requested. Instead, it found that Miller’s subsequent state-
ments were freely and voluntarily made, that Miller under-
stood what he was saying, and that the statements were not the
product of any threats or coercion and thus were admissible.
But the court made no similar findings with respect to Miller’s
initial responses, explaining that on the evidence adduced,
it could not “make a determination that [Miller] understood
what he was saying when he made [the] initial [responses].”
55
See, State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018); Grant,
supra note 52; State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014);
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013); State v. Landis,
281 Neb. 139, 794 N.W.2d 151 (2011); Goodwin, supra note 54. Accord
Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473(1986) (“[w]e hold that coercive police activity is a necessary predicate to
the finding that a confession is not ‘voluntary’ within the meaning of the
Due Process Clause of the Fourteenth Amendment”).
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Cite as 312 Neb. 17On that basis, the court directed the State to redact the initial
responses from the video.
On appeal, Miller challenges the admission of his subse-
quent statements under Jackson v. Denno, but he does not chal-
lenge the redaction order under the same analytical framework.
Instead, Miller challenges the exclusion of his initial responses
under the rule of completeness. We therefore address Miller’s
Jackson v. Denno argument now and will address his argument
regarding the rule of completeness in the next section.
[15] Under the circumstances of this case, both Miller and
the State treated Miller’s subsequent statements as an admis-
sion that no one else was in the vehicle with him at the time of
the accident. In other words, those statements were viewed by
the parties as inculpatory circumstantial evidence that Miller
was driving the vehicle when it crashed. 56 This appeal does not
require us to consider whether Miller’s initial responses can
also be considered admissions or confessions, and we express
no opinion in that regard. The question for purposes of Jackson
v. Denno is whether an admission or confession was voluntary,
not whether it was true, so questions going to the substance
of a statement generally fall outside the scope of a Jackson v.
Denno hearing. 57
On this record, and considering the totality of the circum-
stances, we find no clear error in the district court’s conclusions
that Miller’s subsequent statements were voluntarily made and
were not the product of any coercion, promise, or inducement,
56
See, generally, State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993)
(referring to statement subject to Jackson v. Denno analysis as inculpatory);
Whomble v. State, 143 Neb. 667, 10 N.W.2d 627 (1943) (defining
confession as acknowledgment of guilt and admission as acknowledgment
of fact or circumstance tending to prove ultimate fact of guilt).
57
See, e.g., State v. Bogguess, 293 Kan. 743, 751, 268 P.3d 481, 488
(2012) (“[a]t a Jackson v. Denno hearing, the issue before the trial court
is whether the defendant’s statement or confession was voluntary. The
truthfulness of the statement is not at issue. . . . Questions that go to the
substance of the statements are outside the scope of a Jackson v. Denno
hearing”).
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Cite as 312 Neb. 17direct or indirect. As stated, coercive police activity is a neces-
sary predicate to a finding that a confession is not voluntary, 58
and we see nothing in Kliegl’s questions, tactics, or demeanor
at the scene that can be characterized as coercive police activ-
ity. Quite to the contrary, when Kliegl arrived at the scene and
discovered Miller lying in the ditch, he asked Miller a series of
questions to assess the situation, determine whether Miller was
injured, and determine whether others may be injured. We find
no merit to Miller’s argument that the district court erred by
finding that his subsequent statements were admissible under
Jackson v. Denno.
3. Rule of Completeness
Next, Miller argues it was error for the court to exclude his
offer of the unredacted video containing his initial responses
under the rule of completeness. That rule is set out in § 27-106
and provides:
(1) When part of an act, declaration, conversation
or writing is given in evidence by one party, the whole
on the same subject may be inquired into by the other.
When a letter is read, all other letters on the same subject
between the same parties may be given. When a detached
act, declaration, conversation or writing is given in evi-
dence, any other act, declaration or writing which is nec-
essary to make it fully understood, or to explain the same,
may also be given in evidence.
(2) The judge may in his discretion either require the
party thus introducing part of a total communication to
introduce at that time such other parts as ought in fair-
ness to be considered contemporaneously with it, or may
permit another party to do so at that time.
Miller argues that he was prejudiced by the district court’s
failure to apply this rule, because the jury was allowed to hear
his “statement that he was alone in the vehicle,” 59 but was not
58
E.g., Hernandez, supra note 55.
59
Brief for appellant at 17.
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Cite as 312 Neb. 17allowed to hear his initial responses, which Kliegl understood
to indicate others were in the vehicle. Miller argues that if his
initial responses had been allowed into evidence, then “the
jury could have come to the same conclusion that Kliegl did
initially, that [Miller] was not alone in the vehicle.” 60
[16] The rule of completeness is concerned with the danger
of admitting a statement out of context, and when this danger
is not present, it is not an abuse of discretion for the trial court
to fail to require the production of the remainder of the docu-
ment or statement. 61 Assuming without deciding that the rule of
completeness was violated here, we conclude any error com-
mitted by the district court was harmless.
[17,18] 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 would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error. 62 When the evidence is cumulative
and there is other competent evidence to support the convic-
tion, the improper admission or exclusion of evidence is harm-
less beyond a reasonable doubt. 63
Here, the jury heard the evidence that Miller contends was
admissible under the rule of completeness. At trial, Kliegl tes-
tified, without objection, that when he initially asked Miller
if he was alone in the vehicle, Miller responded with “like a
grunt, like towards a yes.” Kliegl then testified that when he
asked again later, Miller gave a more definitive “no.” And
in response to questioning from Miller on cross-examination,
Kliegl admitted that the first few times he asked Miller ques-
tions at the scene, “all [he got] back [were] unintelligible
moans.” So although Miller’s initial responses were redacted
60
Id. at 17-18.
61
See State v. Manchester, 213 Neb. 670, 331 N.W.2d 776 (1983).
62
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
63
State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
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Cite as 312 Neb. 17from the video exhibit that was played to the jury, Kliegl
nevertheless testified about the initial responses, including his
understanding that Miller was indicating there were others in
the vehicle. The jury thus heard the evidence Miller wanted to
admit through the unredacted video. Any error in excluding the
unredacted video was harmless beyond a reasonable doubt and
does not warrant reversal.
4. Sufficiency of Evidence
Miller argues that the evidence adduced at trial, even when
taken in the light most favorable to the State, was insufficient
to support his convictions for DUI and driving during revoca-
tion. He notes that both convictions required proof he was
operating a motor vehicle, 64 and he argues that there was insuf-
ficient evidence to prove he was operating or in actual physical
control of the vehicle found at the accident scene. He contends
the evidence was insufficient because no witness saw him
driving, he was found 100 feet away from the vehicle, and the
vehicle was not registered to him.
[19] But one accused of a crime, including the crime of
DUI, may be convicted on the basis of circumstantial evidence
if, taken as a whole, the evidence established guilt beyond a
reasonable doubt. 65 In State v. Blackman, 66 law enforcement
found a motorcycle in a ditch along a rural county road. The
defendant was found lying near the motorcycle with his feet
in the ditch and his back on the roadway. When questioned by
law enforcement, the defendant stated he had been traveling
westbound and lost control, and he asked for help getting the
motorcycle back on the roadway. As to whether this evidence
was sufficient to sustain the DUI conviction, we held:
[The officer] initially observed [the defendant] lying in the
ditch next to his motorcycle, and [the defendant] admitted
64
See Neb. Rev. Stat. §§ 60-6,196 and 60-6,197.06 (Reissue 2021).
65
See, State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016); State v.
Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).
66
Blackman, supra note 65.
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Cite as 312 Neb. 17to [the officer] that he had been operating the motorcycle
on the county road immediately before he lost control and
landed in the ditch. [The officer] observed symptoms of
intoxication almost immediately upon encountering [the
defendant]. There is no evidence in the record of other
persons . . . in the area where [the defendant] was found
by the officer, nor is there any other evidence which
would support an inference that [the defendant] had the
means or opportunity of ingesting alcohol from the time
he lost control of the motorcycle until the officer found
him lying beside it in the ditch. [The defendant] argues
that the State did not offer evidence to exclude this possi-
bility, but we do not regard the State’s burden of proving
guilt beyond a reasonable doubt as requiring it to disprove
every theoretical hypothesis other than guilt. In this case,
it can reasonably be inferred that the deputy found [the
defendant] where he had come to rest after losing con-
trol of his motorcycle and that [the defendant’s] state of
intoxication at that time existed when he last operated
the motorcycle on the county road. . . . Thus, viewing
the evidence and all reasonable inferences therefrom in
the light most favorable to the State, we determine that
the evidence was sufficient to establish that [the defend­
ant] was operating a motor vehicle while in violation of
§ 60-6,196 . . . . 67
Similarly, circumstantial evidence that Miller was the driver of
the crashed vehicle included the following: (1) He was the only
person found at the accident scene, (2) he was found injured
and lying unconscious among debris from the vehicle, (3) he
responded “No” when asked if there was anybody else in the
vehicle with him, (4) the vehicle was registered to Miller’s
mother, and (5) investigators searched the accident scene and
found no one else who could have been the driver. Viewing
67
Id. at 949-50, 580 N.W.2d at 551. See, also, State v. Miller, 226 Neb. 576,
412 N.W.2d 849 (1987) (finding circumstantial evidence defendant was
driving vehicle under influence when no other persons found in area).
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Cite as 312 Neb. 17this evidence in the light most favorable to the prosecution,
a rational trier of fact could have found beyond a reasonable
doubt that Miller was operating the vehicle. His assignment of
error to the contrary is without merit.
5. Sentences
Finally, Miller argues that the sentences imposed were
excessive and constituted an abuse of discretion. He argues
that a “shorter sentence, or a sentence of probation, would
allow [him] to support his dependents while paying off his
overwhelming medical debt.” 68 He also argues the sentencing
judge “made comments at sentencing that indicated that the
sentence imposed was based, at least in part, on the judge’s
personal experience.” 69 We address each argument in turn, and
find neither has merit.
The record demonstrates that both of Miller’s sentences
were well within the statutory limits, and he does not contend
otherwise. A sentence imposed within the statutory limits will
not be disturbed on appeal in the absence of an abuse of discre-
tion. 70 A judicial abuse of discretion exists only when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition. 71
[20,21] The sentencing court is not limited to any math-
ematically applied set of factors, but the appropriateness of the
sentence is necessarily a subjective judgment that includes the
sentencing judge’s observations of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding
the defendant’s life. 72 When imposing a sentence, the sentenc-
ing judge should consider the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural
68
Brief for appellant at 22.
69
Id.70
Blake, supra note 12.
71
Id.72
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Cite as 312 Neb. 17background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved
in the commission of the crime. 73 Here, the record shows that
the trial court considered the relevant factors when impos-
ing sentence.
Before imposing sentence, the court stated that it had
reviewed and considered the presentence investigation report.
That report contains information going to each of the sentenc-
ing factors. 74 The report describes a lengthy criminal history,
including convictions for drug possession and delivery, crimi-
nal trespass, assault, forgery, shoplifting, driving under suspen-
sion, operating a motor vehicle to avoid arrest, and four prior
convictions for DUI. In fact, at the time of sentencing in this
case, Miller was serving a 3-year prison sentence imposed on a
2020 DUI conviction.
Our record shows the court considered the relevant sentenc-
ing factors, the arguments at sentencing, and Miller’s allocu-
tion. The court then stated that it had determined imprisonment
was necessary for the protection of the public because the risk
was substantial during any period of probation that Miller
would engage in additional criminal conduct and because a
lesser sentence would depreciate the seriousness of his crimes
and promote disrespect for the law. It therefore sentenced
Miller to imprisonment for not less than 3 years nor more
than 3 years on the DUI conviction and to a consecutive term
of imprisonment for 3 to 5 years on the conviction for driv-
ing during revocation, subsequent offense. On this record, we
find no abuse of discretion in the nature or length of the sen-
tences imposed.
73
Id.74
See Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2020) (presentence inves­
tigation report shall include circumstances of crime, offender’s history
of delinquency and criminality, physical and mental condition, family
situation and background, economic status, education, occupation, personal
habits, and any other relevant matters).
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312 Nebraska Reports
STATE V. MILLER
Cite as 312 Neb. 17Miller also argues that when imposing sentence, the judge
improperly relied on her personal recollection of his involve-
ment in juvenile court, and he points to the following com-
ments made to him by the court after allocution:
I don’t know if you remember me, but I remember you.
I used to be a prosecutor before I became a judge, and
I started out my career in juvenile court. And your fam-
ily was in juvenile court for a long time. Judge Thorson
really saw something in you and your brother that kept
her continuing to give you all chance after chance after
chance after chance. I still see that. Even the prosecu-
tor saw that. The defense counsel saw that. Guardian ad
litem saw that. Everybody else saw that, I think, except
you. You do have what it takes to live a sober life. And
just from what you said here today, I think you may be
starting down the path, I hope, to say that alcohol is just
something that doesn’t work for you. . . .
. . . But you did put this community at risk, and you put
yourself at risk. . . .
....
. . . I don’t think any judge wants to send someone to
prison or jail that doesn’t need to go there. My hands are
tied on a lot of what I can and can’t do for people, includ-
ing you.
Miller does not contend that the judge’s comments or recollec-
tion of his juvenile court history were grounds for recusal, nor
did he make any such request at the time of sentencing. But he
argues on appeal that “[t]he judge remembered [him] and his
family from [his] juvenile court case many years ago, a case on
which the judge was the assigned prosecutor, and [relied] on
this personal experience” when imposing sentence. 75
We note that information regarding Miller’s family history
and juvenile court history was contained in the presentence
investigation report, and therefore, it was part of the infor-
mation provided to the judge in connection with sentencing.
75
Brief for appellant at 22.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. MILLER
Cite as 312 Neb. 17And while the sentencing judge’s comments indicate that she
remembered Miller from an earlier court case, we see nothing
in the record to suggest the judge in any way relied on her
personal knowledge, or on any extrajudicial knowledge, when
imposing sentence in this case. And we soundly reject Miller’s
implication that a judge’s recollection of prior court proceed-
ings involving the same defendant necessarily shows judicial
bias or prejudice. 76
Miller’s juvenile history was not a matter of dispute in this
criminal proceeding, and we see nothing suggesting that the
judge’s recollection of his juvenile history could lead a reason-
able person to question the judge’s impartiality. 77 To the con-
trary, we understand the court’s comments here to have been
made in part to explain the reasons for imposing sentences of
incarceration and in part to inspire Miller to make necessary
changes in his life and address his substance use by emphasiz-
ing what the judge and others perceived as Miller’s potential
for law-abiding behavior. On this record, we find no abuse of
discretion in the court’s remarks during sentencing.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
Affirmed.
76
See Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147, 127 L.
Ed. 2d 474 (1994) (rejecting suggestion that prejudice or bias is shown
by opinions formed from participation in prior proceedings, stating that
“[i]t has long been regarded as normal and proper for a judge to sit in
the same case upon its remand, and to sit in successive trials involving
the same defendant”). Accord, People v. Storms, 155 Ill. 2d 498, 503, 617
N.E.2d 1188, 1190, 187 Ill. Dec. 467, 469 (1993) (“‘[m]erely having a
previous involvement with a defendant does not, per se, require [judicial]
disqualification’”); Wise v. State, 257 Ga. App. 211, 570 S.E.2d 656(2002) (holding trial judge not automatically disqualified from sitting or
acting in criminal cases merely because, in prior employment, he or she
prosecuted defendant in unrelated criminal proceedings).
77
Compare State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).