Summary
The Nebraska Supreme Court affirmed Benjamin M. Thompson’s convictions for driving under the influence, child abuse, and leaving the scene of an injury accident. The court rejected his claims concerning judicial recusal and suppression of blood-test results, holding that any error regarding admission of the blood-test results was harmless. It vacated the sentences for counts 2 through 5 because the sentences and license revocations were unauthorized or improperly determinate, and remanded for resentencing.
Topics
Practice areas
Questions Presented
- Whether the district court erred by denying Thompson's motion to recuse based on an alleged ex parte communication with the prosecution.
- Whether admission of the blood-test results required reversal because the warrant affidavit allegedly failed to establish probable cause or was subject to a Franks v. Delaware challenge.
- Whether the district court committed plain error by imposing unauthorized license revocations and determinate sentences rather than required indeterminate sentences.
Holdings
- A judge who initiates or invites and receives an ex parte communication concerning a pending or impending proceeding must recuse when a litigant requests recusal; however, Thompson failed to prove that an ex parte communication occurred, so denial of the recusal motion was proper.
- Any error in admitting the blood-test results was harmless beyond a reasonable doubt because the record contained abundant independent evidence that Thompson was intoxicated.
- The license revocations imposed for the child-abuse convictions on counts 2 and 3 were unauthorized by state law and constituted plain error.
- Nebraska law required indeterminate sentences for counts 2 through 5 because counts 2 and 3 were Class II felonies and counts 4 and 5 were Class IIIA and Class III felonies imposed concurrently or consecutively with Class II and Class IIA felony sentences.
Key quotations
“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.” (480)
Factual background
Thompson was driving a vehicle carrying his three children when it collided with another vehicle and caused severe injuries to two of the children. He left the accident scene, drove to a park, and was observed discarding alcohol containers; officers also observed signs of intoxication and found alcohol and prescription medication in the vehicle. Police obtained a warrant for a blood draw, and testing showed a blood-alcohol concentration of .115 grams per 100 milliliters. The jury convicted Thompson on all charged counts.
Procedural history
After a seven-day jury trial, Thompson was convicted of driving under the influence, fifth offense; two counts of child abuse resulting in serious bodily injury; child abuse; and leaving the scene of a personal injury accident resulting in serious bodily injury. The district court denied his motions to recuse, suppress the blood draw, and obtain a Franks hearing. The court imposed sentences, including determinate sentences and license revocations that the Nebraska Supreme Court found unauthorized or otherwise erroneous. The Supreme Court affirmed the convictions but vacated the sentences on counts 2 through 5 and remanded for resentencing.
Remand instructions
Vacate the sentences imposed for convictions on counts 2 through 5 and remand those counts to the district court for resentencing with authorized indeterminate sentences and without unauthorized license revocations.