Judges: Recusal. A recusal motion is
initially addressed to the discretion of the judge to whom
the motion is directed.
Constitutional Law: Search and Seizure: Motions to
Suppress: Appeal and Error. In reviewing a trial
court's ruling on a motion to suppress based on a claimed
violation of the Fourth Amendment, an appellate court applies
a two-part standard of review. Regarding historical facts, an
appellate court reviews the trial court's findings for
clear error, but whether those facts trigger or violate
Fourth Amendment protection is a question of law that an
appellate court reviews independently of the trial
Appeal and Error. Plain error may be found
on appeal when an error unasserted or uncomplained of at
trial, but plainly evident from the record, prejudicially
affects a litigant's substantial right and, if
uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process.
Trial: Judges: Words and Phrases. An ex
parte communication occurs when a judge communicates with any
person concerning a pending or impending proceeding without
notice to an adverse party.
Trial: Judges: Recusal. A judge who
initiates or invites and receives an ex parte communication
concerning a pending or impending proceeding must recuse
himself or herself from the proceedings when a litigant
requests such recusal.
Judges: Recusal. A judge should recuse
himself or herself when a litigant demonstrates that a
reasonable person who knew the circumstances of the case
would question the judge's impartiality under an
objective standard of reasonableness, even though no actual
bias or prejudice was shown.
Neb. 473] 7. Criminal Law: Appeal
and Error. 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.
Convictions: Appeal and Error. It is only
prejudicial error, that is, error which cannot be said to be
harmless beyond a reasonable doubt, which requires that a
conviction be set aside.
Appeal and Error. When determining whether
an alleged error is so prejudicial as to justify reversal,
courts generally consider whether the error, in light of the
totality of the record, influenced the outcome of the case.
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.
from the District Court for Douglas County: Gregory M.
Schatz, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
C. Riley, Douglas County Public Defender, and Zoe R. Wade for
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
M. Thompson was operating a motor vehicle in which his three
children were passengers. Thompson's vehicle was struck
by another vehicle, resulting in severe injury to two of the
children. Following a jury trial, Thompson was convicted of
driving under the influence, fifth offense; two counts of
child abuse resulting in serious bodily injury; a single
count of child abuse; and leaving the scene of an injury
accident. Thompson now appeals from the district court's
denial of several pretrial motions, including a motion [301
Neb. 474] to recuse, a motion to suppress the results of his
blood alcohol testing, and a Franks v.
Delaware motion to exclude the results of his blood
testing. We affirm Thompson's convictions, but vacate the
sentences imposed and remand the cause for resentencing.
October 24, 2016, at approximately 2 p.m., police and medical
personnel were dispatched to an injury accident near the
intersection of Sorensen Parkway and 30th Streets in Omaha,
Nebraska. One of the responding officers spoke to Randall
Plugge, who reported that he had been involved in the
accident. Plugge further reported that another vehicle, a
white Nissan, had also been involved in the accident, but had
left the scene and was heading north.
on this information, an officer drove his cruiser north on
30th Street, following a noticeable gouge mark in the
pavement, to a local park. The officer noted a white Nissan
automobile in the parking lot, heavily damaged, with a man,
later identified as Thompson, running from the Nissan to a
trash can. In making contact with Thompson, the officer noted
that Thompson's hands were wet and that he smelled of
alcohol. Thompson was ordered to the ground, and was
handcuffed and arrested. An officer who later processed the
scene testified at trial that there were both full and empty
hard alcohol and beer containers in the car and in the trash
can. There was also a bottle of lorazepam, prescribed to
Thompson, in the car.
being arrested, Thompson reported that his children were in
the Nissan. The officer observed three children in the back
seat: a 1-year-old, who was conscious and crying in a car
seat; a 6-year old, who was slumped over and unconscious; and
an 8-year-old, who was slumped over and unconscious and
bleeding from her chin, mouth, and head.
Neb. 475] The three children were transported to the
hospital. The 1-year-old was hospitalized for 2 days for
trauma caused by the collision. The 6-year-old was in
intensive care for 3 days and was diagnosed with a
significant and "life-threatening" head injury.
8-year-old's condition was worse than those of the
younger children. Her injuries were life-threatening and
required a breathing tube and ventilator. A monitor was
implanted in her brain to monitor swelling. One of her
doctors testified that on a "Glasgow Coma Score,"
which scores range from 3 to 15, with 3 being the worst, the
child began as a 5, but later regressed to a 3. He testified
that 7 months' postcrash, her eyes were open, but she was
unaware of her environment and only "stare[s] off into
space." The doctor testified that the child's
prognosis was poor and that she would probably never fully
recover, would need to be fed through a feeding tube, and
would wear diapers for the rest of her life.
enforcement applied for and was issued a warrant to obtain a
blood draw from Thompson for purposes of determining his
blood alcohol content. The sample tested at .115 gram of
alcohol per 100 milliliters of blood. Thompson was charged by
information with driving under the influence, fifth offense;
child abuse; two counts of child abuse resulting in serious
bodily injury; and leaving the scene of an injury accident.
Counsel filed three pretrial motions which are relevant on
his arrest, Thompson was incarcerated while awaiting trial.
He sought a furlough to visit his daughter in the hospital,
as her doctors testified that she was not likely to survive.
The State opposed the motion, noting both the serious nature
of the child's injuries-specifically, that she would not
recover and that life support was the only thing keeping her
alive-and the fact that those injuries were the result of
Thompson's actions. After noting in the record that
"in view of the seriousness of the offense, that
[Thompson] is charged [301 Neb. 476] with a Class IIA Felony,
'Which may, from what the prosecutor tells me, change
were this person to expire, '" the district court
denied the motion.
subsequently filed a motion to recuse, basing the motion on
the district court's statement that it was aware that
were the child to die, the State would amend the charges
against Thompson. Thompson's counsel indicated that she,
counsel, was not present for any such communication with the
State and that the court could have discovered that intention
only as a result of an ex parte communication with the State.
At a hearing on the motion, the State offered into evidence
an affidavit from the deputy county attorney on the case,
averring that no communication on the matter alleged was had
between the State and the district court.
the hearing, the district court denied the motion to recuse,
noting that even if the evidence was clear that such a
communication had taken place (and, the court implied, such
was not clear), that communication would not draw into the
question the court's impartiality because of the facts of
this particular case: namely, that the accident was alleged
to have been caused by ...