State v. Lewis ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/24/2023 09:06 AM CDT
- 879 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879State of Nebraska, appellant, v.
Maylesha S. Lewis, appellee.
___ N.W.2d ___
Filed March 24, 2023. No. S-22-324.
1. Pleadings. Issues regarding the grant or denial of a plea in bar are ques-
tions of law.
2. Evidence: Appeal and Error. On a question of law, an appellate court
reaches a conclusion independent of the court below.
3. Double Jeopardy. The Double Jeopardy Clauses of the U.S. and
Nebraska Constitutions are coextensive and protect against three distinct
abuses: (1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after conviction, and (3)
multiple punishments for the same offense.
4. ____. Double jeopardy principles do not bar a successive prosecution in
those situations where the State was unable to proceed on the more seri-
ous charge at the outset because the additional facts necessary to sustain
that charge had not yet occurred at the time of the prosecution for the
first offense.
5. Double Jeopardy: Appeal and Error. In exception proceedings, appli-
cation of Neb. Rev. Stat. § 29-2316 (Reissue 2016), by its terms, turns
on whether the defendant has been placed in jeopardy in the trial court,
not on whether the Double Jeopardy Clause bars further action.
6. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, legal jeop-
ardy attaches (1) in a case tried to a jury, when the jury is impaneled and
sworn; (2) when a judge, hearing a case without a jury, begins to hear
evidence as to the guilt of the defendant; or (3) at the time the trial court
accepts the defendant’s guilty plea.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Exception sustained, order reversed, and
cause remanded for further proceedings.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879Ryan Lindberg, Deputy Douglas County Attorney, and
Hannah Henry and Zachary Severson, Senior Certified Law
Students, for appellant.
Thomas C. Riley, Douglas County Public Defender, and
Jessica C. West for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Maylesha S. Lewis was convicted and sentenced for driv-
ing under the influence resulting in serious bodily injury 1 after
crashing into a light pole and injuring her passenger. The pas-
senger later died from injuries sustained in the collision, and
Lewis was charged with motor vehicle homicide while operat-
ing a vehicle under the influence. 2 Lewis filed a plea in bar
to the subsequent charge, asserting she was being prosecuted
a second time for the same offense in violation of her double
jeopardy rights. The district court agreed and dismissed the
subsequent prosecution.
The State filed this exception proceeding assigning error
to the district court’s double jeopardy analysis. We sustain
the exception, reverse the order granting the plea in bar, and
remand the cause for further proceedings.
I. BACKGROUND
On October 11, 2020, Lewis was operating a vehicle in
Omaha, Nebraska, when she left the roadway and collided
with a light pole. A passenger in Lewis’ vehicle, Thomas
Martin, was severely injured in the collision. Lewis admit-
ted she had consumed alcohol and smoked marijuana before
1
See Neb. Rev. Stat. § 60-6,198 (Reissue 2021).
2
See Neb. Rev. Stat. § 28-306(3)(b) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879the collision. Chemical testing after the collision showed her
blood alcohol content was well above the legal limit.
1. 2020 Prosecution
A few days after the October 11, 2020, collision, Lewis was
charged with the Class IIIA felony offense of driving under
the influence resulting in serious bodily injury, in violation of
§ 60-6,198. For ease of reference, this opinion refers to the
offense as “DUI/serious bodily injury.” Lewis initially entered
a plea of not guilty, but later pled guilty to the offense as
charged. At the change of plea hearing, the State’s factual basis
recited that Martin had been transported from the collision
scene with “life-threatening” injuries and remained hospital-
ized in a coma. The court accepted Lewis’ guilty plea and set
the matter for sentencing.
On March 22, 2021, Lewis was sentenced to a 30-month
term of incarceration followed by 18 months of post-release
supervision, as well as a 5-year license revocation with the
option of obtaining an “interlock” device. On the date Lewis
was sentenced, Martin remained hospitalized in a persistent
vegetative state.
Martin died several months later. For purposes of this appeal,
the parties do not dispute that he died as a result of injuries
sustained in the October 11, 2020, collision.
2. 2021 Prosecution
On December 20, 2021, the State charged Lewis with the
Class IIA felony offense of motor vehicle homicide in viola-
tion of § 28-306(3)(b). The information was filed directly in
the district court and alleged that on October 11, 2020, Lewis
caused the death of Martin while engaged in the unlawful
operation of a motor vehicle while under the influence in viola-
tion of Neb. Rev. Stat. § 60-6,196 (Reissue 2021). For ease of
reference, this opinion refers to the charged offense as “motor
vehicle homicide/DUI.”
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879At arraignment, Lewis filed a plea in bar alleging the
subsequent prosecution was barred by the Double Jeopardy
Clause of the U.S. and Nebraska Constitutions. The court
conducted an evidentiary hearing on the plea in bar and
received exhibits, including (1) police reports regarding the
October 11, 2020, collision; (2) certified copies of the crimi-
nal informations filed in the 2020 and 2021 prosecutions; and
(3) a certified transcript of the change of plea hearing and the
sentencing hearing in the prior prosecution for DUI/serious
bodily injury.
In an order entered March 30, 2022, the district court sus-
tained Lewis’ plea in bar. It applied the test from Blockburger
v. United States 3 and concluded that, for double jeopardy
purposes, the crimes of DUI/serious bodily injury and motor
vehicle homicide/DUI were the “same offense.” More spe-
cifically, the court concluded the crime of DUI/serious bodily
injury was a lesser-included offense of motor vehicle homicide/
DUI, reasoning it would be impossible to cause death without
simultaneously causing serious bodily injury. The court thus
concluded that the offense of motor vehicle homicide/DUI did
not require proof of a fact the offense of DUI/serious bodily
injury did not and that the second prosecution was barred by
double jeopardy under the Blockburger test.
The court granted the State’s request for leave to docket
exception proceedings pursuant to Neb. Rev. Stat. § 29-2315.01(Cum. Supp. 2022), and the State filed a timely notice of
appeal. We granted the State’s petition to bypass the Nebraska
Court of Appeals.
II. ASSIGMENTS OF ERROR
The State assigns, consolidated and restated, that the dis-
trict court erred in (1) applying the Blockburger 4 test to
3
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306(1932).
4
See id.- 883 -
Nebraska Supreme Court Advance Sheets
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STATE V. LEWIS
Cite as 313 Neb. 879analyze Lewis’ double jeopardy claim and (2) granting the
plea in bar.
III. STANDARD OF REVIEW
[1,2] Issues regarding the grant or denial of a plea in bar
are questions of law. 5 On a question of law, an appellate court
reaches a conclusion independent of the court below. 6
IV. ANALYSIS
1. Double Jeopardy
The Fifth Amendment to the U.S. Constitution provides
in relevant part that no person shall be “subject for the same
offence to be twice put in jeopardy of life or limb.” Similarly,
article I, § 12, of the Nebraska constitution provides, “No per-
son shall be . . . twice put in jeopardy for the same offense.”
[3] We have recognized that the Double Jeopardy Clauses
of the U.S. and Nebraska Constitutions are coextensive and
protect against three distinct abuses: (1) a second prosecution
for the same offense after acquittal, (2) a second prosecution
for the same offense after conviction, and (3) multiple punish-
ments for the same offense. 7
Lewis’ plea in bar claims the charge of motor vehicle homi-
cide/DUI is a second prosecution for the same offense after
conviction. In other words, she contends that her 2020 convic-
tion for DUI/serious bodily injury and her 2021 prosecution
for motor vehicle homicide/DUI are the “same offense” for
purposes of the prohibition against double jeopardy.
Lewis contends the district court correctly analyzed her
double jeopardy claim using the test announced by the U.S.
5
State v. Bedolla, 298 Neb. 736, 905 N.W.2d 629 (2018); State v. Lavalleur,
298 Neb. 237, 903 N.W.2d 464 (2017).
6
Id.7
See, Blockburger, supra note 3; State v. Sierra, 305 Neb. 249, 939 N.W.2d
808 (2020); State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879Supreme Court in Blockburger. 8 One of the State’s arguments
on appeal is that instead of Blockburger, the district court
should have applied the double jeopardy framework from the
U.S. Supreme Court case of Diaz v. United States. 9 To con-
sider these arguments, we summarize pertinent holdings from
both cases.
(a) Blockburger
In Blockburger, the Court held that “where the same act
or transaction constitutes a violation of two distinct statu-
tory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provi-
sion requires proof of a fact which the other does not.” 10
Courts generally apply the Blockburger “same elements”
test whether the double jeopardy claim asserted is multiple
punishment for the same offense or successive prosecution
for the same offense. 11 As stated, the district court here
applied the Blockburger test and concluded the crime of DUI/
serious bodily injury was the same offense as the crime of
motor vehicle homicide/DUI; thus, the 2021 prosecution was
barred by double jeopardy.
The State argues that the test from Blockburger is not appli-
cable here for two reasons. First, it contends the Legislature
intended to treat DUI/serious bodily injury and motor
8
See Blockburger, supra note 3.
9
Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912).
10
Blockburger, supra note 3, 284 U.S. at 304.
11
See, Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187(1977) (“[i]f two offenses are the same under [Blockburger] for purposes
of barring consecutive sentences at a single trial, they necessarily will
be the same for purposes of barring successive prosecutions”). Accord,
Winkler, supra note 7 (applying Blockburger test to successive prosecution
claim); State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011) (applying
Blockburger test to cumulative punishment claim).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879vehicle homicide/DUI as separate offenses 12 because the stat-
utes defining such crimes expressly provide: “The crime pun-
ishable under this section shall be treated as a separate and dis-
tinct offense from any other offense arising out of acts alleged
to have been committed while the person was in violation of
this section.” 13 Alternatively, the State argues the appropriate
double jeopardy analysis is found in the U.S. Supreme Court’s
opinion in Diaz, 14 not Blockburger. The State also argues that
even if Blockburger provides the proper test, the district court’s
Blockburger reasoning was flawed.
Although the parties devote much of their appellate brief-
ing to whether, under the Blockburger test, the crime of DUI/
serious bodily injury is a lesser-included offense of motor
vehicle homicide/DUI, we do not find it necessary to address
that question. 15 Instead, on the circumstances of this case,
we agree the double jeopardy framework from Diaz governs
our analysis.
12
See, e.g., Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407,
85 L. Ed. 2d 764 (1985) (plurality disregards Blockburger in successive
prosecution case and holds “[w]here the same conduct violates two
statutory provisions, the first step in the double jeopardy analysis is to
determine whether the legislature—in this case Congress—intended that
each violation be a separate offense”); Albernaz v. United States, 450
U.S. 333, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981) (treating Blockburger
as method to ascertain legislative intent when nothing more concrete
is available). Accord Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.
Ct. 673, 74 L. Ed. 2d 535 (1983) (stating where “legislature specifically
authorizes cumulative punishment under two statutes, regardless of
whether those two statutes proscribe the ‘same’ offense under Blockburger,
a court’s task of statutory construction is at an end”).
13
§ 28-306(4); § 60-6,198(4).
14
See Diaz, supra note 9.
15
See State v. Huston, 298 Neb. 323, 903 N.W.2d 907 (2017) (appellate
court not obligated to engage in analysis not necessary to adjudicate case
and controversy before it).
- 886 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879(b) Diaz
In Diaz, the defendant physically attacked the victim and
was convicted and sentenced for misdemeanor assault and bat-
tery. The victim later died from his injuries, and the defendant
was then prosecuted for homicide. After filing an unsuccessful
plea in bar asserting the successive prosecution was barred
by double jeopardy, the defendant was convicted and sen-
tenced for homicide. He appealed to the Supreme Court of the
Philippines, where the conviction was affirmed.
The U.S. Supreme Court, applying a provision in federal law
which it had previously construed to extend to the Philippines
the same protection against double jeopardy as afforded by the
U.S. Constitution, 16 concluded the homicide prosecution was
not barred by double jeopardy. It reasoned:
The homicide charged against the accused in the Court
of First Instance and the assault and battery for which he
was tried before the justice of the peace, although identi-
cal in some of their elements, were distinct offenses both
in law and in fact. The death of the injured person was
the principal element of the homicide, but was no part
of the assault and battery. At the time of the trial for the
latter the death had not ensued, and not until it did ensue
was the homicide committed. Then, and not before, was it
possible to put the accused in jeopardy for that offense. .
. . It follows that the plea of former jeopardy disclosed no
obstacle to the prosecution for homicide. 17
Diaz was decided before Blockburger, but the Court has
regularly described Diaz as an exception to the general dou-
ble jeopardy rule forbidding successive prosecution for a
greater offense after prosecuting a lesser-included offense.
16
See Gavieres v. United States, 220 U.S. 338, 31 S. Ct. 421, 55 L. Ed. 489(1911), citing Kepner v. United States, 195 U.S. 100, 24 S. Ct. 797, 49 L.
Ed. 114 (1904).
17
Diaz, supra note 9, 223 U.S. at 448-49.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879For instance, in Brown v. Ohio, 18 the Supreme Court recited
the general rule that the Double Jeopardy Clause forbids suc-
cessive prosecution and cumulative punishment for the same
offense, but added a footnote citing Diaz for the proposition
that “[a]n exception may exist where the State is unable to
proceed on the more serious charge at the outset because
the additional facts necessary to sustain that charge have not
occurred or have not been discovered despite the exercise of
due diligence.” 19 Similarly, in Jeffers v. United States, 20 the
Supreme Court cited Diaz for the proposition that the general
double jeopardy rule “does have some exceptions” and “[o]ne
commonly recognized exception is when all the events neces-
sary to the greater crime have not taken place at the time the
prosecution for the lesser is begun.”
Several legal commentators also describe Diaz as an excep-
tion to the general rule forbidding successive prosecution for
a greater offense after prosecuting a lesser-included offense. 21
One treatise cites Diaz for the following proposition:
18
Brown, supra note 11.
19
Id., 432 U.S. at 169, n.7.
20
Jeffers v. United States, 432 U.S. 137, 151, 97 S. Ct. 2207, 53 L. Ed. 2d
168 (1977). See, also, Blackledge v. Perry, 417 U.S. 21, 29, n.7, 94 S. Ct.
2098, 40 L. Ed. 2d 628 (1974) (“[t]his would clearly be a different case if
the State had shown that it was impossible to proceed on the more serious
charge at the outset, as in Diaz. . . . Obviously, it would not have been
possible for the authorities in Diaz to have originally proceeded against
the defendant on the more serious charge, since the crime of homicide was
not complete until after the victim’s death”).
21
See, 5 Wayne R. LaFave et al., Criminal Procedure § 17.4(b) (4th ed.
(2015)); 2 Nancy Hollander et al., Wharton’s Criminal Procedure § 11:7
(14th ed. (2017)) (double jeopardy does not bar successive prosecution
where State unable to proceed on more serious charge at outset because
facts necessary to sustain that charge have not occurred). See, also,
22A C.J.S. Criminal Procedure and Rights of Accused § 650 (2016)
(double jeopardy not implicated where fact necessary for prosecution of
subsequent offense had not occurred at time of first prosecution).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879Even though the general double jeopardy rule bars
separate criminal prosecutions for the same offense, one
exception that exists is for those situations where the
State is unable to proceed on the more serious charge
at the outset because the additional facts necessary to
sustain that charge have not yet occurred or have not
been discovered despite the exercise of due diligence.
In those circumstances, the courts permit a succes-
sive prosecution. 22
Consistent with these authorities, other state and federal
courts have applied Diaz to factual circumstances very similar
to the one before us and found no double jeopardy violation. 23
These courts generally hold that double jeopardy principles
do not bar a subsequent prosecution when the State was
unable to proceed on the more serious charge at the outset
because the additional facts necessary to sustain that charge
22
2 Hollander et al., supra note 21, § 11:7 at 11-59 to 11-60 (internal
quotation marks omitted).
23
See, Mitchell v. Cody, 783 F.2d 669 (6th Cir. 1986) (convictions for
driving while intoxicated and disregarding stop sign before victim died
no bar to subsequent charge of unlawful killing in operation of motor
vehicle); State v. Hutchinson, 156 N.H. 790, 942 A.2d 1289 (2008)
(double jeopardy no bar to prosecution for murder after attempted murder
conviction before victim died); People v. Scott, 15 Cal. 4th 1188, 939
P.2d 354, 65 Cal. Rptr. 2d 240 (1997) (prior conviction of rape and
attempted murder no bar to murder prosecution when victim died in
interim); People v. Harding, 443 Mich. 693, 506 N.W.2d 482 (1993) (prior
conviction of armed robbery and assault with intent to murder no bar to
felony murder prosecution where victim died in interim), abrogated on
other grounds, People v. Ream, 481 Mich. 223, 750 N.W.2d 536 (2008);
Hinton v. District Court of Oklahoma County, 693 P.2d 1277 (Okla. Crim.
1984) (prior child abuse conviction no bar to murder prosecution where
child died in interim), overruled on other grounds, White v. State, ex rel.
Hopper, 821 P.2d 378 (Okla. Crim. 1991); State v. Mitchell, 682 S.W.2d
918 (Tenn. 1984) (conviction for traffic offenses no bar to motor vehicle
homicide prosecution where victim died in interim).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879had not yet occurred at the time of the prosecution for the
first offense. 24
[4] We now join those jurisdictions applying the Diaz excep-
tion and hold that double jeopardy principles do not bar a
successive prosecution in those situations where the State was
unable to proceed on the more serious charge at the outset
because the additional facts necessary to sustain that charge
had not yet occurred at the time of the prosecution for the
first offense.
The Diaz exception applies here. At the time Lewis was
charged and convicted for DUI/serious bodily injury, Martin
was seriously injured but still alive. Because Martin’s death
was a necessary element of the offense of motor vehicle homi-
cide/DUI, the State was not able to bring the more serious
charge at the time it prosecuted Lewis for DUI/serious bodily
injury. Under Diaz, double jeopardy permits the State to prose-
cute Lewis for the more serious offense of motor vehicle homi-
cide/DUI, despite having previously convicted her of DUI/
serious bodily injury.
We thus conclude the district court erred in granting Lewis’
plea in bar, and we sustain the State’s exception. We turn next
to the effect of this decision.
2. Effect of Decision in
Exception Proceeding
This appeal was brought by the State pursuant to § 29-2315.01,
which authorizes the prosecuting attorney to “take exception to
any ruling or decision of the court made during the prosecu-
tion of a cause” by following a specific procedure. Our record
shows the statutory procedure was followed here, and Lewis
does not contend otherwise.
But in exception proceedings, not every decision of the
appellate court can affect the defendant. According to Neb.
Rev. Stat. § 29-2316 (Reissue 2016):
24
See id.- 890 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. LEWIS
Cite as 313 Neb. 879The judgment of the court in any action taken pursu-
ant to section 29-2315.01 shall not be reversed nor in
any manner affected when the defendant in the trial court
has been placed legally in jeopardy, but in such cases the
decision of the appellate court shall determine the law
to govern in any similar case which may be pending at
the time the decision is rendered or which may thereaf-
ter arise in the state. When the decision of the appellate
court establishes that the final order of the trial court was
erroneous and the defendant had not been placed legally
in jeopardy prior to the entry of such erroneous order, the
trial court may upon application of the prosecuting attor-
ney issue its warrant for the rearrest of the defendant and
the cause against him or her shall thereupon proceed in
accordance with the law as determined by the decision of
the appellate court.
[5,6] We have explained that application of § 29-2316, by
its terms, turns on whether the defendant has been placed
in jeopardy in the trial court, not on whether the Double
Jeopardy Clause bars further action. 25 In Nebraska, jeopardy
attaches (1) in a case tried to a jury, when the jury is impan-
eled and sworn; (2) when a judge, hearing a case without a
jury, begins to hear evidence as to the guilt of the defend­
ant; or (3) at the time the trial court accepts the defendant’s
guilty plea. 26
Here, exception proceedings followed from an order grant-
ing Lewis’ plea in bar. As such, none of the events triggering
legal jeopardy have yet occurred. Because jeopardy has not
yet attached, 27 we sustain the State’s exception, and we also
reverse the order granting the plea in bar and remand the cause
for further proceedings.
25
State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).
26
Id.27
See id. (holding defendant not placed in jeopardy when exception taken
from district court order sustaining motion to quash).
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STATE V. LEWIS
Cite as 313 Neb. 879V. CONCLUSION
Pursuant to the Diaz exception, double jeopardy principles
do not bar a successive prosecution in those situations where
the State was unable to proceed on the more serious charge at
the outset because the additional facts necessary to sustain that
charge had not yet occurred. Because it was not possible for
the State to have charged Lewis with motor vehicle homicide/
DUI at the time she was being prosecuted for DUI/serious
bodily injury, Diaz applies and the successive prosecution here
does not violate double jeopardy.
We therefore sustain the State’s exception, reverse the order
granting the plea in bar, and remand the cause for further
proceedings.
Exception sustained, order reversed, and
cause remanded for further proceedings.