State v. Hood , 301 Neb. 207 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/23/2018 12:11 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. HOOD
Cite as 301 Neb. 207
State of Nebraska, appellee, v.
Edward Hood, appellant.
___ N.W.2d ___
Filed October 5, 2018. No. S-17-637.
1. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
2. Effectiveness of Counsel: Appeal and Error. An appellate court deter-
mines as a matter of law whether the record conclusively shows that
(1) a defense counsel’s performance was deficient or (2) a defendant
was or was not prejudiced by a defense counsel’s alleged deficient
performance.
3. Criminal Law: Juries: Evidence: Appeal and Error. In a jury trial of
a criminal case, an erroneous evidentiary ruling results in prejudice to a
defendant unless the error was harmless beyond a reasonable doubt.
4. Verdicts: Juries: Appeal and Error. Harmless error review looks to
the basis on which the jury actually rested its verdict. The inquiry is
not whether in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered was surely unattributable to the error.
5. Trial: Evidence. The erroneous admission of evidence is generally
harmless error and does not require reversal if the evidence is cumula-
tive and other relevant evidence, properly admitted, supports the finding
by the trier of fact.
6. Effectiveness of Counsel: Records: Appeal and Error. A claim of
ineffective assistance of counsel may be resolved when the record on
direct appeal is sufficient to either affirmatively prove or rebut the mer-
its of the claim. The record is sufficient if it establishes either that trial
counsel’s performance was not deficient, that the appellant will not be
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able to establish prejudice, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy.
7. Effectiveness of Counsel: Proof: Appeal and Error. When making an
ineffective assistance of counsel claim on direct appeal, allegations of
prejudice are not required. However, a defendant must make specific
allegations of the conduct that he or she claims constitutes deficient
performance.
8. Postconviction: Effectiveness of Counsel: Records: Claims: Appeal
and Error. In the case of an argument presented for the purpose of
avoiding procedural bar to a future postconviction proceeding, appellate
counsel must present a claim with enough particularity for (1) an appel-
late court to make a determination of whether the claim can be decided
upon the trial record and (2) a district court later reviewing a petition
for postconviction relief to be able to recognize whether the claim was
brought before the appellate court.
9. Effectiveness of Counsel: Proof. To show deficient performance under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), a defendant claiming ineffective assistance of counsel must
show that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law.
10. Criminal Law: Intoxication: Mental Competency. As a matter of law,
voluntary intoxication is not a complete defense to a crime, even when
it produces psychosis or delirium.
11. Criminal Law: Insanity: Intent. Although there is but one type of
insanity which will support a finding of not guilty or not responsible by
reason of insanity, there are a variety of mental conditions which bear
upon the ability to form a specific intent.
12. Drunk Driving: Blood, Breath, and Urine Tests. Evidence of a
driver’s refusal to submit to a warrantless blood draw is admissible in a
prosecution for driving under the influence.
13. Criminal Law: Evidence. A death certificate, standing alone, is not
competent evidence of the cause of death in a controversy where the
cause of death is a material issue.
14. Criminal Law: Appeal and Error. Harmless error jurisprudence rec-
ognizes that not all trial errors, even those of constitutional magnitude,
entitle a criminal defendant to the reversal of an adverse trial result.
15. Appeal and Error. It is only prejudicial error, that is, error which can-
not be said to be harmless beyond a reasonable doubt, which requires
a reversal.
Appeal from the District Court for Garden County: Derek C.
Weimer, Judge. Affirmed.
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STATE v. HOOD
Cite as 301 Neb. 207
Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder,
Chaloupka & Longoria, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Funke, J.
Edward Hood appeals from his convictions for motor vehi-
cle homicide, manslaughter, driving under the influence of
alcohol causing serious bodily injury, and refusal to submit to a
preliminary breath test. The court sentenced Hood to consecu-
tive terms totaling between 73 and 75 years’ imprisonment. We
affirm the judgment of the trial court.
BACKGROUND
In December 2013, a two-vehicle, head-on collision
occurred on U.S. Highway 26 in Garden County near Oshkosh,
Nebraska. Hood was driving one of the vehicles; the driver of
the other vehicle died at the scene, and the passenger of that
vehicle survived after being in a coma for 9 days and sustain-
ing extensive injuries.
After the accident, an off-duty Nebraska State Patrol trooper
who came upon the accident asked Hood what happened and
Hood said that just prior to the accident, he was looking out the
window at a large flock of birds and when he looked back at
the road, he suddenly observed a car in front of him. A trained
emergency medical technician and volunteer firefighter who
attended to Hood later testified he smelled a “[v]ery strong”
odor of alcohol coming from Hood.
Garden County Deputy Sheriff Dwight Abbott helped Hood
into the front seat of Abbott’s cruiser and drove Hood to a
local hospital. Abbott did not arrest or restrain Hood at that
time. Abbott testified that during the drive, he smelled alcohol
coming from Hood and noticed Hood’s speech was slow and
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his eyes were bloodshot. Hood told Abbott that the accident
happened “real fast” after he “looked out the window and saw
the birds.”
Meanwhile, officers at the scene continued to investigate the
accident. There was evidence that Hood’s vehicle had swerved
across the oncoming lane of traffic and drove off that side of
the roadway for about 60 feet, then crossed all the way back
through his lane and past the shoulder line, and then made
a heavy overcorrection and turned back across his lane and
entered the oncoming lane of traffic. The victim who was driv-
ing pulled onto the shoulder to attempt to evade Hood, but
Hood’s vehicle was traveling “completely sideways” when its
front passenger side struck the front driver’s side wheel of the
other vehicle. There was no indication that Hood ever applied
the brakes.
Garden County Chief Deputy Sheriff Randy Ross testified
that he opened Hood’s vehicle and smelled a sweet, alcoholic
odor. Ross located a bottle of brandy, which was two-thirds
full, in a bag behind the center console. Ross relayed this
information to Abbott, and Abbott questioned Hood about the
accident while they were at the hospital.
Abbott asked Hood if he had been drinking. Hood replied
that “he drank four beers last night” and said that “last night
was a hard night.” Abbott asked Hood to take a preliminary
breath test, and after Hood refused, Abbott placed Hood under
arrest for driving under the influence. Abbott read Hood the
“Post-Arrest Chemical Test Advisement Form” and then asked
Hood to submit to a blood test. Hood refused, stating he was a
recovering heroin addict and “doesn’t do needles.”
Hood was then turned over to medical personnel. Tracy
Ray, a physician assistant at the hospital, examined and treated
Hood. Ray was initially at the accident scene, but then went to
the hospital in order to treat those injured in the accident. Ray
testified that Hood had bloodshot eyes, slurred speech, and
alcohol on his breath. Ray drew blood from Hood, with Hood’s
consent, as part of a diagnostic evaluation. Law enforcement
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subsequently subpoenaed the hospital and obtained Hood’s
blood and urine samples.
Prior to trial, Hood filed a motion to suppress the blood
and urine samples collected by the hospital. The court granted
Hood’s motion and suppressed the subpoenaed evidence.
During trial, Hood made an oral motion in limine based on the
U.S. Supreme Court’s decision in Birchfield v. North Dakota1 to
preclude the State from introducing evidence of Hood’s refusal
to submit to a blood test to prove the remaining charges. The
court overruled Hood’s motion based on this court’s decision
in State v. Rask,2 which held that Neb. Rev. Stat. § 60-6,197
(Cum. Supp. 2016) permits evidence of refusal to prove driving
under the influence (DUI) charges.
At trial, during direct examination of Ross, the State offered
the victim’s death certificate into evidence. The document car-
ried the seal of the Nebraska Department of Health and Human
Services and was signed by the Garden County Attorney, indi-
cating that the victim’s death was caused by “Whole [B]ody
Severe Trauma” as the result of a “Two Vehicle Collision”
on Highway 26 and that her death occurred at 2:52 p.m. on
December 7, 2013. The court received the exhibit over Hood’s
objection regarding his right to confront the author of state-
ments made in the death certificate.
The jury convicted Hood of motor vehicle homicide, man-
slaughter, and driving under the influence of alcohol causing
serious bodily injury, and the court later found Hood guilty
of refusal to submit to a preliminary breath test. Following a
presentence investigation, and after the court received evidence
of Hood’s two prior DUI convictions from Florida and New
Mexico, the district court sentenced Hood to serve consecu-
tive terms of 49 to 50 years for motor vehicle homicide, 19 to
20 years for manslaughter, and 5 years for driving under the
1
Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d
560 (2016).
2
State v. Rask, 294 Neb. 612, 883 N.W.2d 688 (2016).
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influence of alcohol causing serious bodily injury. The court
gave Hood credit for time served, ordered Hood to pay a $100
fine for refusal to submit to a preliminary breath test, and
revoked Hood’s operator’s license for a period of 15 years.
Hood filed a notice of appeal, the trial court appointed
appellate counsel, and we moved the case to our docket.3
ASSIGNMENTS OF ERROR
Hood assigns, restated, that (1) the performance of Hood’s
trial counsel was deficient and unfairly prejudiced Hood’s
right to a fair trial, (2) the district court erred as a matter of
law in admitting evidence of Hood’s refusal to submit to a
blood test, and (3) the district court violated Hood’s right to
confrontation by admitting the victim’s death certificate with-
out sponsoring testimony.
STANDARD OF REVIEW
[1,2] Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a ques-
tion of law, which turns upon the sufficiency of the record to
address the claim without an evidentiary hearing or whether
the claim rests solely on the interpretation of a statute or
constitutional requirement.4 We determine as a matter of law
whether the record conclusively shows that (1) a defense
counsel’s performance was deficient or (2) a defendant was
or was not prejudiced by a defense counsel’s alleged deficient
performance.5
[3-5] In a jury trial of a criminal case, an erroneous eviden-
tiary ruling results in prejudice to a defendant unless the error
was harmless beyond a reasonable doubt.6 Harmless error
review looks to the basis on which the jury actually rested
3
See Neb. Rev. Stat. § 24-1106 (Supp. 2017).
4
State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
5
Id.
6
State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
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its verdict. The inquiry is not whether in a trial that occurred
without the error, a guilty verdict would surely have been
rendered, but whether the actual guilty verdict rendered was
surely unattributable to the error.7 The erroneous admission
of evidence is generally harmless error and does not require
reversal if the evidence is cumulative and other relevant evi-
dence, properly admitted, supports the finding by the trier
of fact.8
ANALYSIS
Hood Failed to Show That Trial Counsel’s
Performance Was Deficient
as M atter of Law
Hood argues that his trial counsel should have pursued a
defense based on the theory that Hood had diminished mental
capacity. Hood asserts that he may have been suffering from
a mental illness and used alcohol as self-medication. He sug-
gests that following the collision, he was acting confused and
erratic and was making strange and nonsensical statements,
and that therefore, he was possibly suffering from psycho-
sis, schizophrenia, or bipolar disorder. Hood claims that “the
record contained evidence that, if fully developed, would have
supported a defense based on diminished capacity” 9 and that
Hood could have argued he had been rendered unable to dis-
tinguish right from wrong.
The State argues that Hood’s allegations are insufficient,
because Hood did not allege that he actually lacked the ability
to distinguish right from wrong, but merely asserted that “trial
counsel did not explore the potential application”10 of a dimin-
ished capacity defense. The State argues the record refutes
Hood’s ineffective assistance of counsel allegations.
7
Id.
8
Id.
9
Brief for appellant at 12.
10
Id.
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When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct
appeal any issue of trial counsel’s ineffective performance
which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred.11
[6] However, the fact that an ineffective assistance of coun-
sel claim is raised on direct appeal does not necessarily mean
that it can be resolved.12 Such a claim may be resolved when
the record on direct appeal is sufficient to either affirmatively
prove or rebut the merits of the claim.13 The record is suf-
ficient if it establishes either that trial counsel’s performance
was not deficient, that the appellant will not be able to estab-
lish prejudice, or that trial counsel’s actions could not be justi-
fied as a part of any plausible trial strategy.14
[7,8] When making an ineffective assistance of coun-
sel claim on direct appeal, allegations of prejudice are not
required.15 However, a defendant must make specific allega-
tions of the conduct that he or she claims constitutes deficient
per­formance.16 In the case of an argument presented for the
purpose of avoiding procedural bar to a future postconvic-
tion proceeding, appellate counsel must present a claim with
enough particularity for (1) an appellate court to make a deter-
mination of whether the claim can be decided upon the trial
record and (2) a district court later reviewing a petition for
postconviction relief to be able to recognize whether the claim
was brought before the appellate court.17 A claim insufficiently
stated is no different than a claim not stated at all.18
11
Cotton, supra note 4.
12
Id.
13
Id.
14
Id.
15
State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
16
Id.
17
Cotton, supra note 4.
18
Id.
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[9] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington,19 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense.20 To show deficient performance, a defendant must
show that counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law.21 To show
prejudice, the defendant must demonstrate a reasonable prob-
ability that but for counsel’s deficient performance, the result
of the proceeding would have been different.22 A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.23 The two prongs of this test may be addressed
in either order, and the entire ineffectiveness analysis should be
viewed with a strong presumption that counsel’s actions were
reasonable.24 We will not second-guess trial counsel’s reason-
able strategic decisions.25
In support of his argument that trial counsel should have
pursued a diminished capacity defense, Hood claims there is
evidence that he was in a state of confusion at the scene and
after the accident. Hood points to the testimony of Ray, the
physician assistant, who observed Hood to have “delayed cog-
nitive responses” and stated that when he asked Hood a ques-
tion, “there was a period of time before he would give me an
answer.” Ray said that meant that Hood was confused, because
“anytime we have somebody that has repetitive questions or
inaccurate answers to the same question, that’s a state of con-
fusion for some reason.”
19
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
20
Cotton, supra note 4.
21
Id.
22
Id.
23
Id.
24
Id.
25
See State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018).
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Additionally, Hood referred to the fact that his explanation
of watching a flock of birds just prior to the accident “made
no sense, and was given to multiple officers.”26 For example,
Ross testified that “[Hood] told me he was just looking at the
birds that were flying overhead and I believe during that meet-
ing he, he told us that it was God’s time for her to go,” refer-
ring to the deceased victim.
Hood does not allege that the facts of this case would
have satisfied an insanity defense based on Neb. Rev. Stat.
§ 29-2203 (Reissue 2016). The fact that a defendant has
some form of mental illness or defect does not by itself
establish insanity.27 Section 29-2203 was amended to provide
that “insanity does not include any temporary condition that
was proximately caused by the voluntary ingestion, inhala-
tion, injection, or absorption of intoxicating liquor, any drug
or other mentally debilitating substance, or any combina-
tion thereof.”28
[10] Hood does not argue his counsel should have pursued a
defense based on intoxication under Neb. Rev. Stat. § 29-122
(Reissue 2016). Section 29-122 states in part:
Intoxication is not a defense to any criminal offense
and shall not be taken into consideration in determining
the existence of a mental state that is an element of the
criminal offense unless the defendant proves, by clear and
convincing evidence, that he or she did not (1) know that
it was an intoxicating substance when he or she ingested,
inhaled, injected, or absorbed the substance causing the
intoxication or (2) ingest, inhale, inject, or absorb the
intoxicating substance voluntarily.
Voluntary intoxication is not a complete defense to a crime,
even when it produces psychosis or delirium.29
26
Brief for appellant at 12.
27
State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
28
§ 29-2203(4). See 2011 Neb. Laws, L.B. 100, § 2.
29
State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
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[11] Instead, Hood argues that evidence of his diminished
mental capacity could have rebutted evidence that he acted
with criminal intent.30 We have held that separate and apart
from an insanity defense, a defendant may, with appropriate
evidence, try to defeat the charge filed against him or her by
proving that at the time the offense occurred, the defendant
lacked the ability to intend the voluntary and probable conse-
quences of his or her act.31 In State v. Vosler,32 we noted that
“although there is but one type of insanity which will support
a finding of not guilty or not responsible by reason of insanity,
there are a variety of mental conditions which bear upon the
ability to form a specific intent.”
However, we agree with the State that the record affirma-
tively shows that Hood’s mental capacity was not a factor
in the collision. For example, during the hearing on Hood’s
motion to suppress, Ray testified that he evaluates a patient’s
competency prior to conducting a blood draw, that he advised
Hood of his rights and found Hood to be capable of consent-
ing, and that Hood consented to a blood draw. In addition, Ray
testified that Hood asked for a telephone to call his mother and
told his mother that he “needed a lot of money and he was in
trouble.” Further, Hood was able to provide his medical history
to Ray and was able to inform a State Patrol trooper that he
believed he had suffered a broken ankle.
The record related to Hood’s sentencing also demonstrates
that Hood did not have a viable diminished capacity defense.
The district court reviewed Hood’s presentence investigation
report and considered Hood’s “mentality” and whether he
“contemplated causing serious harm” in determining Hood’s
sentence. The court reviewed evidence of Hood’s difficult
upbringing and family history, problems with substance abuse
30
See State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984).
31
State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999); Vosler, supra
note 30.
32
Vosler, supra note 30, 216 Neb. at 468, 345 N.W.2d at 811.
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from an early age, criminal record, and unsuccessful participa-
tion in state programs. The court did not conclude that Hood
lacked the ability to distinguish between right and wrong.
Rather, the court described Hood as a “recidivis[t] drunk
driver” and stated:
[Y]ou absolutely meant to get in the car. You absolutely
meant to do that and once you made that decision, once
that decision was made . . . it was game on for every other
driver on the road and [the victims] didn’t ask to play.
They were involuntary actors in your decision to drink
and to drive. It was your choice. . . . You choose to drink.
You choose to drive and these poor people happened to be
in the wrong place at the wrong time.
We also note that pursuant to Neb. Rev. Stat. § 29-1823
(Reissue 2016), the court had the authority to determine
Hood’s competency. The court had the case from 2014 to
2017, and the record does not show that the State, Hood, or
Hood’s counsel requested a competency evaluation. The most
likely explanation as to why Hood’s mental capacity was not
explored is because a diminished capacity defense would have
lacked merit.
We find the record refutes the allegations that the perform­
ance of trial counsel was deficient. The testimony of Ray and
the unchallenged comments of the court at sentencing provide
that counsel’s decision not to pursue the mental capacity issue
was not inconsistent with the conduct of a lawyer with ordi-
nary training and skill. There is no basis from the record to
conclude that Hood’s mental capacity at the time of the acci-
dent would have negated his criminal liability.
Furthermore, we find that Hood’s generalized allegations
of deficient performance are insufficient. Hood alleged in a
conclusory fashion that raising a diminished capacity defense
“would have favorably impacted his criminal liability.”33 But
Hood did not allege that he actually lacked capacity for a
33
Brief for appellant at 14.
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specific reason. Rather, Hood’s claim is that based on his
behavior, he might have been suffering from psychosis, schizo-
phrenia, or bipolar disorder. Absent specific allegations, Hood’s
ineffective assistance of counsel claim effectively becomes a
discovery motion to determine whether evidence favorable to a
defendant’s position actually exists.34
We conclude that the record refutes Hood’s claim and that
his claim is insufficiently raised. Therefore, Hood has failed
to state a claim that the performance of his trial counsel was
deficient as a matter of law. This assignment of error is with-
out merit.
Evidence of Driver’s R efusal to Warrantless
Blood Draw Is A dmissible in
DUI Prosecution
Hood’s second assignment of error argues that Birchfield
categorically prohibits the use of evidence in a DUI prosecu-
tion that a defendant refused to consent to a warrantless blood
draw.35 Hood argues that even though the crash in this case
occurred years before Birchfield, Hood’s trial occurred after
Birchfield became law, and that as a result, the jury should not
have been permitted to consider evidence that Hood refused
to submit to Abbott’s request for a blood test. Hood argues
the jury should not have been allowed to “infer guilt in such
ambiguous circumstances, particularly involving the exercise
of a constitutional right.”36
Hood’s argument runs headlong into § 60-6,197(6), which
states, “[r]efusal to submit to a chemical blood, breath, or
urine test or tests pursuant to this section shall be admissible
evidence in any action for a violation of section 60-6,196 . . .”
The district court acknowledged that in Rask, we found that
§ 60-6,197(6) “is a broad rule, without exception—it states
34
See, Foster, supra note 25; State v. Abdullah, 289 Neb. 123, 853 N.W.2d
858 (2014).
35
See Birchfield, supra note 1.
36
See State v. Gauthier, 174 Wash. App. 257, 265, 298 P.2d 126, 131 (2013).
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only that a refusal is admissible to prosecute a DUI”37 and
held that under § 60-6,197(6), even uninformed refusals to
submit to a chemical test are admissible for the purpose of
proving DUI charges. We determined that a defendant’s refusal
to submit to a chemical test is evidence of the circumstances
surrounding a DUI charge and said that a refusal showed the
“‘defendant’s conduct, demeanor, statements, attitudes, and
relation toward the crime.’”38
Hood’s brief does not address § 60-6,197(6) and does not
assert that § 60-6,197(6) is unconstitutional, and the State
does not argue that we should interpret Hood’s argument as
a constitutional challenge to the statute. The record further
indicates that Hood has not preserved an argument regard-
ing the constitutionality of § 60-6,197(6), either facially or as
applied to Hood, because Hood did not file a notice of consti-
tutional question pursuant to Neb. Ct. R. App. P. § 2-109(E)
(rev. 2014).
Because Hood does not question the constitutionality of
§ 60-6,197(6), in addressing his assignment of error, we find
it appropriate to reiterate our decision in Rask in light of the
U.S. Supreme Court’s decision in Birchfield. We did not rely
upon Birchfield in our decision in Rask, because the case was
briefed and argued prior to Birchfield. We take this opportu-
nity to discuss the Birchfield decision and its implications on
Nebraska law in the context of the evidentiary concern raised
by Hood.
In State v. McCumber,39 we considered the extent to which
portions of § 60-6,197 have been invalidated by the U.S.
Supreme Court’s decision in Birchfield. Unlike Hood’s case,
McCumber involved a conviction on a charge of refusing to
submit to a blood test. We held that the defendant’s conviction
37
Rask, supra note 2, 294 Neb. at 620, 883 N.W.2d at 695.
38
Id. at 621, 883 N.W.2d at 696 (quoting State v. Meints, 189 Neb. 264, 202
N.W.2d 202 (1972)).
39
State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).
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for refusal under § 60-6,197 was unconstitutional as applied
to him based on Birchfield, because the only basis offered by
the State to demand a blood test from the defend­ant was that
he could be searched incident to a lawful arrest for drunk driv-
ing or that he had consented to a blood test under Nebraska’s
implied consent laws.40 However, we held that § 60-6,197 is
facially constitutional, because there are circumstances under
which a conviction for refusal under § 60-6,197 would be valid
even after Birchfield. We explained that a charge for refusal
to submit to a chemical test could be valid if law enforcement
has obtained a warrant to conduct a blood draw or if exigent
circumstances exist such that there is no time to secure a war-
rant.41 Therefore, Birchfield limited the legal force and effect
of § 60-6,197 only to the extent that warrantless blood draws
and prosecutions of a refusal to submit to a warrantless blood
draw cannot be justified as part of a search incident to arrest or
based on implied consent.
In State v. Hoerle,42 we examined in detail Birchfield
and its implications on Nebraska law. We explained that
Birchfield did not categorically prohibit a warrantless blood
draw based on a driver’s actual consent and that a court
must consider the totality of the circumstances to determine
whether a driver’s consent to a blood test was freely and
voluntarily given.43 We acknowledged that warrantless blood
draws based on a search incident to arrest or implied consent
could not be constitutionally justified, but concluded that the
good faith exception applies to pre-Birchfield blood draws of
this nature.44
40
Id.
41
Id.
42
State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017), cert. denied ___
U.S. ___, 138 S. Ct. 1986, 201 L. Ed. 2d 248 (2018).
43
Id.
44
Id. See, also, State v. Nielsen, ante p. 88, ___ N.W.2d ___ (2018); State v.
Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).
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Though we have not yet specifically addressed the propriety
of admitting evidence of a driver’s refusal in a criminal DUI
proceeding post-Birchfield, the Birchfield Court shed light on
the issue when it stated that “[o]ur prior opinions have referred
approvingly to the general concept of implied-consent laws
that impose civil penalties and evidentiary consequences on
motorists who refuse to comply. . . . Petitioners do not ques-
tion the constitutionality of those laws, and nothing we say
here should be read to cast doubt on them.” 45 As a result,
we do not read the Birchfield Court’s decision as placing
restrictions on the use of evidence of a driver’s refusal in a
DUI proceeding.
The Birchfield Court was primarily concerned with the
heightened privacy interests implicated by blood tests, which
are more physically invasive than breath tests and provide
law enforcement a sample that can be preserved and proc­
essed to provide more information about an individual than is
provided by a breath test.46 After recognizing the substantial
privacy concerns presented by blood draws and conclud-
ing the search incident to arrest exception does not apply
to warrantless blood tests, the Court considered whether
implied consent statutes qualified as a consent exception to
the requirement for a warrant. The Court stated that “[t]here
must be a limit to the consequences to which motorists may
be deemed to have consented by virtue of a decision to drive
on public roads” 47 and concluded that “motorists cannot be
deemed to have consented to submit to a blood test on pain
of committing a criminal offense.” 48 The Court did not go
on to conclude, as Hood argues, that the Fourth Amendment
prohibits the use of evidence of a defendant’s refusal in a
45
Birchfield, supra note 1, 136 S. Ct. at 2185.
46
See id.
47
Id., 136 S. Ct. at 2185.
48
Id., 136 S. Ct. at 2186.
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DUI criminal proceeding, particularly where the defendant
has not been charged with the crime of refusal and no blood
draw has taken place.
Several state courts have been confronted with the very
issue raised by Hood and have acknowledged that the Fourth
Amendment does not bar the admission of evidence of refusal
to submit to a warrantless blood draw.49 For example, the
Supreme Court of Vermont reasoned that criminalizing refusal
poses qualitatively different Fourth Amendment concerns than
merely allowing evidence of the refusal at a criminal DUI
trial.50 Even though the State is permitted to use a defend­
ant’s refusal as circumstantial evidence of guilt, a defend­
ant has a full opportunity to explain the basis for refusal to
the jury.
In this case, the State argued that Hood refused because
“[h]e knows he’s in trouble.” Based on the record, Hood could
have rebutted this argument by explaining that he refused
because he is a recovering heroin addict and “doesn’t do
needles” and that he later offered to provide Abbott a blood
sample but Abbott declined.
[12] In summary, Birchfield itself clarified that the pro-
priety of evidentiary consequences for a driver’s refusal to
submit to a blood draw should not be questioned. If Hood’s
position were the law, no drunk driver would ever submit to
a blood test. Therefore, consistent with our decision in Rask,
we join the courts which have concluded that evidence of
a driver’s refusal to submit to a warrantless blood draw is
admissible in a DUI prosecution. Hood’s assignment of error
is without merit.
49
See, State v. Rajda, Nos. 2017-051, 2017-126, 2018 WL 3494646 (Vt.
July 20, 2018); MacMaster v. State, 344 Ga. App. 222, 809 S.E.2d 478
(2018); State v. Storey, 2018 NMCA 009, 410 P.3d 256 (2017); Fitzgerald
v. People, 394 P.3d 671 (Colo. 2017), cert. denied ___ U.S. ___, 138 S. Ct.
237, 199 L. Ed. 2d 122.
50
See Rajda, supra note 49.
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Court’s Error in A dmitting Death
Certificate Without Supporting
Testimony Was H armless
In his third assignment of error, Hood claims the district
court erred in admitting a death certificate, without a support-
ing witness, in a case wherein the time, place, and manner of
death are necessary elements of the charged offenses. Hood
argues that statements made in the death certificate were testi-
monial in nature and that therefore, he had a right to confront
the author of the statements.
During direct examination of Ross, the State detoured from
questioning Ross to offer the victim’s death certificate into evi-
dence. The following exchange took place:
[State]: Your Honor, the State would also see[k] to
offer the Certificate of Death of [the victim]. It is authen-
ticated. It does have a seal here.
THE COURT: [Defense counsel?]
[Defense counsel]: Judge, objection, confrontation.
THE COURT: The objection is overruled. The court
will receive Exhibit 49.
The Sixth Amendment to the U.S. Constitution provides
that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him . . . .”
Hood argues the Sixth Amendment required exclusion of the
death certificate based on the U.S. Supreme Court’s decision
in Crawford v. Washington,51 which generally held that an out-
of-court testimonial statement of an unavailable declarant is
not admissible at a criminal trial unless a defendant had a prior
opportunity to cross-examine the declarant. Hood argues that
statements made by the Garden County Attorney in the victim’s
death certificate were testimonial in nature and that the court
had not found the Garden County Attorney to be unavailable to
provide testimony.
51
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).
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[13] Nebraska has historically not followed the rule which
permits a death certificate to be received in evidence as pre-
sumptive evidence of the facts stated therein.52 This court has
held, even in the civil context where the confrontation clause
is not at issue, that a death certificate, standing alone, is not
competent evidence when offered as proof of the cause of
death in a controversy where the cause of death is a mate-
rial issue.53
In Vanderheiden v. State,54 we extended this rule to the
criminal context based on a Confrontation Clause rationale.
We found that “death certificates are made ex parte without
a hearing and without the right of cross-examination” and
found that the certificate was not admissible to prove the cause
of death.55
In Skinner v. Jensen,56 we applied the rule from Vanderheiden
to a habeas corpus proceeding in which the relator challenged
the sufficiency of evidence produced at a preliminary hear-
ing. The relator was being held on a charge of manslaughter,
and the only evidence to establish the death or cause of death
of the victim was a death certificate. We found that the death
certificate was not competent evidence and that therefore,
there was insufficient evidence to sustain a finding that man-
slaughter had been committed, and we noted that the State
could file a new complaint and present additional evidence at
a future hearing.57
Based on our prior line of cases, we determine that the trial
court erred in admitting the victim’s death certificate without
52
See McNaught v. New York Life Ins. Co., 145 Neb. 694, 18 N.W.2d 56
(1945).
53
McNaught, supra note 52; Omaha & C. B. Street R. Co. v. Johnson, 109
Neb. 526, 191 N.W. 691 (1922).
54
Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761 (1953).
55
Id. at 744, 57 N.W.2d at 767.
56
Skinner v. Jensen, 178 Neb. 733, 135 N.W.2d 134 (1965).
57
Id.
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supporting testimony from the author, regardless of whether
the statements made in the death certificate were testimonial in
nature or whether the Confrontation Clause required exclusion
of the evidence. We determine, however, the court’s error was
harmless beyond a reasonable doubt, because the time, place,
and cause of the victim’s death were not contested issues in
this case; the death certificate was cumulative of other evi-
dence on these issues; the jury’s guilty verdict was surely unat-
tributable to the court’s error; and there was properly admitted
evidence to support the jury’s finding.
[14,15] Our harmless error jurisprudence recognizes that
not all trial errors, even those of constitutional magnitude,
entitle a criminal defendant to the reversal of an adverse trial
result.58 It is only prejudicial error, that is, error which can-
not be said to be harmless beyond a reasonable doubt, which
requires a reversal.59 When determining whether an alleged
error is so prejudicial as to justify reversal, courts generally
consider whether the error, in light of the totality of the record,
influenced the outcome of the case.60
There was no dispute that one of the victims in this case
was deceased. Nor was there a dispute about the time and
place of the victim’s death. Ross testified that when he arrived
on the scene, a man yelled at him to get over to the victim’s
vehicle and said he thought “the driver was gone but the pas-
senger was still alive and breathing.” Ross went to the victim’s
vehicle and found that the driver had no pulse, so he focused
on the passenger. Ross testified that he told Ray that officers
had “one critically injured on their way to the hospital, one
fatality and one with a broken ankle.” A chief deputy sheriff,
who was also at the scene of the collision, testified that after
leaving the scene, officers went to the funeral home with the
deceased victim.
58
State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).
59
Id.
60
Id.
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There was also no dispute about the cause of the victim’s
death. Hood’s vehicle collided with the front driver’s side
of the deceased victim’s vehicle. Ross testified that after the
accident, the deceased victim’s body was “in a state of bro-
kenness.” Defense counsel did not focus on whether a death
occurred based on the collision, but on whether the collision
was the result of Hood’s intoxication or whether Hood acciden-
tally lost control of his vehicle due to distracted driving.
Although the State offered the death certificate into evi-
dence, the State did not expressly rely on the death certifi-
cate to establish a fact in issue. Hood correctly described the
admission of the death certificate as a “detour[]” 61 from the
other evidence presented. The State never referred back to the
death certificate after it was admitted. We agree with the State
that the death certificate was cumulative of other evidence of
the time, place, and cause of the deceased victim’s death. We
therefore conclude that the court’s admission of the death cer-
tificate was harmless beyond a reasonable doubt. This assign-
ment of error is without merit.
CONCLUSION
We conclude that Hood failed to state an ineffective assist­
ance of counsel claim as a matter of law. Further, we conclude
that evidence of a driver’s refusal to submit to a warrantless
blood draw is admissible in a DUI prosecution. Lastly, we con-
clude that the trial court’s error in admitting the victim’s death
certificate without supporting testimony was harmless beyond
a reasonable doubt. We therefore affirm Hood’s convictions
and sentences.
A ffirmed.
Freudenberg, J., not participating.
61
Brief for appellant at 9.