State v. Miller

312 Neb. 17

978 N.W.2d 19

STATE of Nebraska, appellee,

v.Dustin L. MILLER, appellant.

No. S-21-343.

Supreme Court of Nebraska.

Filed July 22, 2022

Joseph D. Nigro, Lancaster County Public Defender, and Todd Molvar, for appellant.

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

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

Stacy, J.

After a jury trial, Dustin L. Miller was convicted and sentenced for driving under the influence (DUI), fourth offense, and driving during revocation, second offense. In this direct appeal, he contends the trial court erred by failing to suppress the results of a warrantless blood test and by making certain evidentiary rulings regarding statements Miller made to police. He also contends there was insufficient evidence to support his convictions, and he argues his sentences are excessive. Finding no merit to Miller's assigned errors, we affirm.

I. BACKGROUND

On or about February 25, 2020, police discovered Miller lying unconscious in a ditch at the scene of a single-vehicle accident. Miller was transported by ambulance to a hospital, where medical staff performed a warrantless blood draw, at the request of police. The test result showed that Miller had a blood alcohol content of .254 grams of alcohol per 100 milliliters of blood.

In November 2020, Miller was charged with DUI, .15 or over, with three prior convictions (a Class IIA felony), and driving during revocation, subsequent offense (a Class IIA felony).

1. MOTION TO SUPPRESS

Miller moved to suppress the results of the blood test, arguing the warrantless blood draw was an unconstitutional search in violation of the U.S. and Nebraska Constitutions. Officer Zachary Kliegl testified at the suppression hearing.

Kliegl testified that at approximately 1 a.m. on February 25, 2020, he was on duty and driving eastbound near 40th Street and Highway 2 in Lincoln, Nebraska. He noticed a pickup truck in the ditch on the southeast corner of the intersection that looked like it had collided with a streetlight and rolled into the ditch. Kliegl activated his cruiser's overhead lights and stopped to inspect the accident. He determined the pickup truck was heavily damaged, unoccupied, and smelled of alcohol. He observed debris scattered nearby, including an open can of beer.

Kliegl eventually discovered Miller lying in the ditch under some debris, approximately 100 feet west of the vehicle. Miller appeared to be in and out of consciousness. Kliegl asked Miller "if he was okay and if there was anybody else that was in the vehicle with him." Miller moaned or grunted something in response, which Kliegl interpreted as a "yes." Based on that response, Kliegl walked back toward the vehicle to search for others who might be injured. He did not find anyone else, so he returned to Miller and asked again whether there were others in the vehicle. This time, Miller responded that he was the only one in the vehicle. The events at the accident scene were recorded by a video camera in Kliegl's cruiser.

Miller was transported to a hospital by ambulance, and Kliegl followed in his cruiser, leaving other officers at the scene. When Kliegl arrived at the hospital, staff were preparing to take Miller for x rays. Kliegl waited in the hospital room until Miller was returned. At that point, Miller was snoring and unresponsive. Medical personnel informed Kliegl that Miller had fractured vertebrae in his neck and back, and it was necessary to commence medical treatment "right away," including administering fluids that could possibly alter his blood alcohol content.

Kliegl had formed an opinion that Miller was operating a motor vehicle while under the influence of alcohol. His opinion was based on Miller's general condition when discovered, as well as the facts that Miller was the only one found at the accident scene, a preliminary investigation showed the pickup truck was registered to Miller's mother, an open beer can was found at the scene, and Kliegl smelled alcohol on Miller and in the pickup truck at the scene. Kliegl testified that in his experience, obtaining a warrant for a blood draw could take around 3 hours. He did not think he had enough time to obtain a warrant under the circumstances, due to the extent of Miller's injuries and the need for medical staff to treat him with fluids that could affect his blood alcohol content.

Kliegl directed medical staff to perform a blood draw on Miller immediately, and they did so. Before the blood draw, Kliegl read aloud the standard consent for blood draw, but Miller was not conscious at the time, and there is no contention that Miller actually consented to the blood draw.

On cross-examination, Kliegl testified that he was aware a county court judge was always on call to review requests for warrants and that he was aware the hospital had a substation he could have used to draft such a request. He also testified that he was not working the accident alone; two other officers were with him at the hospital, and other officers were present at the accident scene.

Based on the evidence adduced at the suppression hearing, the State argued the warrantless blood draw was validly obtained because the situation triggered the exigent circumstances exception to the Fourth Amendment.¹ The defense disagreed, arguing that even though Miller was unconscious, law enforcement could have, and should have, obtained a warrant for Miller's blood sample.

The district court made an express finding that Kliegl's testimony was credible and that it established the existence of exigent circumstances which justified the warrantless blood draw. The court therefore overruled the motion to suppress and ordered Miller to appear for trial in approximately 2 weeks.

2. JACKSON V. DENNO

Miller filed a pretrial motion requesting a Jackson v. Denno² hearing to determine whether the State intended to offer evidence of any admissions or confessions Miller made to law enforcement officers and, if so, to hold an evidentiary hearing to determine admissibility. The motion was taken up just prior to Kliegl's testimony at trial, outside the presence of the jury.

The State advised the court that it intended to offer evidence of Miller's statements to Kliegl at the scene, and it proceeded to offer evidence regarding such statements. Kliegl testified that he asked Miller several questions at the scene, including "if he was okay," "if he was the driver of the vehicle," and "if he was injured." Kliegl described that initially, Miller was "just, like, kind of groaning" in response to the questions. When Kliegl asked Miller if there was anyone else in the vehicle with him, he "believe[d] it sounded like [Miller] said, yes." But after searching and finding no one else at the accident scene, Kliegl asked Miller again whether there was anyone else in the vehicle with him. This time, Miller gave what Kliegl described as a "more definite answer," indicating that no one was with him. Kliegl was not sure whether Miller understood his questions initially, but he believed that Miller understood the question being asked when he responded more definitively that there was nobody else in the vehicle. Kliegl testified that he did not make any threats or promises to get Miller to speak with him at the scene and that Miller appeared to be speaking freely and voluntarily.

The audio-video recorder in Kliegl's cruiser captured Kliegl's questions and Miller's responses at the accident scene, and the recording was received into evidence and played for the court. That exhibit shows Kliegl arriving on the scene, and he can be heard asking Miller several questions including, "You alright?"; "[A]nybody else with you?"; and "[W]hat's your name?" Miller responded to these questions with an audible groan. Kliegl asked again, "Did you have a passenger with you?" Miller responded with two short moans, to which Kliegl replied, "You did? Male? Female?" and Miller moaned again in response. About 1 minute later, Kliegl returned and asked, "My man ... [w]as anybody else in the truck with you?" This time Miller responded, "What?" and then replied, "No." Kliegl then confirmed, "No? Just you?" Miller responded with a moan.

After reviewing the exhibit, the court ruled from the bench. As to Miller's responses of "What?" and "No" to Kliegl's question about whether anyone else was in the pickup truck with him, the court found that Miller made the statements, that he understood what he was saying, and that the statements were freely and voluntarily made under all the circumstances and were not the product of any coercion, promise, or inducement, direct or indirect.

After the court's ruling, the State sought clarification about Miller's other responses and whether the entire video exhibit could be played for the jury. The court stated, "You'll have to redact those other statements, as I cannot make a determination that [Miller] understood what he was saying when he made [the] initial statements." In response to the court's clarification, Miller told the court that he had no objection to the earlier responses, and he asked to be allowed to publish the entire video exhibit to the jury pursuant to the rule of completeness.³ The court refused that request.

3. JURY TRIAL

The evidence adduced at trial was consistent with that described above. In addition, Kliegl testified that Miller was the only person he discovered at the accident scene and that no one else was observed walking near the accident scene. He also testified that when other officers arrived to assist, a search was made for other individuals and none were found.

Kliegl also testified that in his opinion, based on the evidence and his observations and training, Miller was under the influence of alcohol at the time of the accident. The parties stipulated that Miller's operator's license had been revoked for a period of 15 years, from December 6, 2016, to December 6, 2031.

At the start of trial, Miller made a...