State v. Hood

301 Neb. 207

917 N.W.2d 880

STATE of Nebraska, appellee,

v.Edward HOOD, appellant.

No. S-17-637.

Supreme Court of Nebraska.

Filed October 5, 2018.

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, P.C., L.L.O., Scottsbluff, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Funke, J.Edward Hood appeals from his convictions for motor vehicle 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 consecutive 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 sustaining 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 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 driving 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 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 carried the seal of the Nebraska Department of Health and Human Services and was signed by the Garden County Attorney, indicating 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 statements made in the death certificate.

The jury convicted Hood of motor vehicle homicide, manslaughter, 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 consecutive terms of 49 to 50 years for motor vehicle homicide, 19 to 20 years for manslaughter, and 5 years for driving under the 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 without sponsoring testimony.

STANDARD OF REVIEW

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.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

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.⁶ 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.⁷ The erroneous admission of evidence is generally harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact.⁸

ANALYSIS

HOOD FAILED TO SHOW THAT TRIAL COUNSEL’S PERFORMANCE WAS DEFICIENT AS MATTER 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 suggests 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 psychosis, 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 distinguish 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 diminished capacity defense. The State argues the record refutes Hood’s ineffective assistance of counsel allegations.

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

However, the fact that an ineffective assistance of counsel 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 sufficient if it establishes either that trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy.¹⁴

When making an ineffective assistance of counsel claim on direct appeal, allegations of prejudice are not required.¹⁵ However, a defendant must make specific allegations of the conduct that he or she claims constitutes deficient...