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State v. Thompson

Supreme Court of Nebraska

November 2, 2018

State of Nebraska, appellee,
Benjamin M. Thompson, appellant.

         1. Judges: Recusal. A recusal motion is initially addressed to the discretion of the judge to whom the motion is directed.

         2. 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 court's determination.

         3. 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.

         4. 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.

         5. 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.

         6. 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.

         [301 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.

         8. 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.

         9. 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.

         10. 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.

          Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge. Affirmed in part, and in part vacated and remanded for resentencing.

          Thomas C. Riley, Douglas County Public Defender, and Zoe R. Wade 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.

          Heavican, C.J.


         Benjamin 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[1] 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.


         On 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.

         Based 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.

         After 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.

         [301 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.

         The 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.

         Law 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 appeal.

         Motion to Recuse.

         Following 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.

         Thompson 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.

         Following 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 ...

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