State v. Sollman

29 Neb.App. 356

953 N.W.2d 569

STATE of Nebraska, appellee,

v.Abram K. SOLLMAN, appellant.

No. A-20-172.

Court of Appeals of Nebraska.

Filed January 12, 2021.

Thomas P. Strigenz, Sarpy County Public Defender, and Mitchell S. Sell, Senior Certified Law Student, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis, for appellee.

Moore, Bishop, and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

Abram K. Sollman appeals his conviction of motor vehicle homicide, driving under the influence of alcohol (DUI), and reckless driving. He contends the district court erred in (1) overruling his motion to dismiss at the close of evidence and finding him guilty of count 1, because an efficient intervening cause destroys proximate cause; (2) overruling his hearsay objection to exhibit 5; (3) finding evidence beyond a reasonable doubt that he was guilty of count 2; (4) overruling his motion to dismiss at the close of evidence and finding him guilty of count 3; (5) overruling his motion to suppress the statements he made to law enforcement; and (6) imposing excessive sentences. For the reasons set forth herein, we affirm Sollman's convictions and sentences.

II. STATEMENT OF FACTS

At about 6 p.m. on February 1, 2019, Sean Nowling was traveling westbound on Interstate 80 when "[a]ll of a sudden [he heard] honking of a horn like blaring" and a silver Volkswagen Jetta came "fl[ying] by [him] in the left lane ... swerving back and forth through traffic," outpacing all other cars on the road and not using turn signals. Nowling later saw the same Volkswagen, which he described as a "station wagon car" with "real fancy rims on it" and a Wisconsin license plate, with a door open at the "[Highway] 370 exit" where its driver had pulled over onto the side of the road and it appeared to Nowling as if the driver "was urinating on the side of the road."

After Nowling passed the silver Volkswagen, Nowling exited at the Gretna, Nebraska, off ramp before the Volkswagen came "flying by [him] on the shoulder up through three or four cars ... in front of [him] ... on the shoulder all the way through" and ran "the red light at the off ramp turn and Highway 31" toward Gretna. Nowling watched as the Volkswagen ran a second red light near a shopping mall, causing the vehicles in the area to quickly brake to avoid a collision. Nowling also observed the Volkswagen "swerv[e]," "whi[p] around," make a "U-turn," and "hea[d] back towards the [I]nterstate on Highway 31." Shortly thereafter, Nowling saw an "ambulance [and] sheriffs [and saw] Highway 31 was closed off."

Shortly thereafter, a Sarpy County sheriff's deputy, John Sanderson, arrived at the scene of the accident involving the silver Volkswagen and another vehicle, which accident had resulted in injuries to both drivers. Sollman was identified as the driver of the Volkswagen, and a Sarpy County sheriff's sergeant, Kyle Percifield, discovered a "small bottle of Fireball whisky ... on the passenger side of [Sollman's] vehicle." Deputy Sanderson smelled alcohol emanating from Sollman as Sollman was being transported on a stretcher to a "life flight" helicopter and taken to the University of Nebraska Medical Center (UNMC). The driver of the second vehicle, Cassandra Clausen, later died of blunt force trauma to her torso as a result of the accident.

After Deputy Sanderson smelled alcohol emanating from Sollman, he obtained a search warrant to obtain a DUI blood draw from Sollman. When Deputy Sanderson arrived at UNMC to execute the search warrant, he informed Sollman that he had a search warrant for a blood draw, went over the post-chemical-test advisements, and, during the same conversation, asked Sollman if he had had anything to drink. Sollman responded that he "hadn't had anything to drink in 15 hours prior was his last drink." The results from the blood draw taken pursuant to the search warrant, which draw occurred approximately 3 hours after the accident, showed that Sollman's blood alcohol content was .125 plus or minus .01 grams of ethanol per 100 milliliters of blood.

The following day, Sergeant Percifield visited Sollman at UNMC and inquired about Sollman's recollection of the accident. Sollman stated that he had been traveling from Michigan to Lincoln and that "he didn't feel intoxicated" prior to the accident. Sergeant Percifield interviewed Sollman for a second time while Sollman was in jail and began by informing Sollman of the charges against him and the preliminary conclusions of the investigation into the accident. During this jail interview, Sollman responded that he thought the speed limit was 65 m.p.h. Sergeant Percifield acknowledged that he did not advise Sollman of his Miranda rights while interviewing Sollman at either the hospital or the jail.

In March 2019, Sollman was charged with motor vehicle homicide while under the influence of alcohol or drugs, a Class IIA felony under Neb. Rev. Stat. § 28-306(3)(b) (Reissue 2016) (count 1); DUI, a Class W misdemeanor under Neb. Rev. Stat. § 60-6,196 (Reissue 2010) (count 2); and reckless driving, a Class III misdemeanor under Neb. Rev. Stat. § 60-6,213 (Reissue 2010) (count 3). The information alleged that Sollman unintentionally caused Clausen's death while engaged in the unlawful operation of a motor vehicle, i.e., under the influence of alcohol beyond the legal limit.

1. MOTION TO SUPPRESS

Prior to trial, Sollman moved to suppress statements he made to law enforcement at the scene of the February 1, 2019, accident and the following day while he was in the hospital, alleging the statements were obtained in violation of the 4th through 6th and 14th Amendments to the U.S. Constitution, as well as article I, §§ 7 and 12, of the Nebraska Constitution.

More specifically, Sollman asserted that the statements were obtained when he was hospitalized and in extreme pain and suffering; that he was not free to leave; that his statements were given neither freely nor voluntarily and were not made knowingly, understandingly, or intelligently; that he was not informed of his Miranda rights; and that his statements were a result of questions that law enforcement should have known were likely to elicit an incriminatory response.

At the suppression hearing, certain of the aforementioned facts that were relevant to Sollman's motion were admitted into evidence. Additional testimony was adduced from Deputy Sanderson and Sergeant Percifield.

(a) Deputy Sanderson

When Deputy Sanderson executed the search warrant for a blood draw, he observed Sollman to be "conscious, alert, and talking"; believed Sollman knew who Deputy Sanderson was and what was going on; and noted Sollman was appropriately responsive to the questions posed to him. Deputy Sanderson acknowledged that he did not speak with hospital staff about Sollman's condition or about any medications given to Sollman prior to speaking with him; however, Deputy Sanderson reiterated that Sollman was "with it ... able to hold a conversation," which Deputy Sanderson testified provided him with no indication that Sollman would be unable to coherently answer Deputy Sanderson's questions. Deputy Sanderson agreed that Sollman's condition likely prevented him from moving around the room or leaving at the time Deputy Sanderson spoke with him, but acknowledged that he did not know for sure. Deputy Sanderson noted that Sollman did not refuse to speak with him and did not ask for an attorney, but acknowledged that he did not advise Sollman of his rights.

Deputy Sanderson recalled that during his interaction with Sollman, he was standing "probably about five feet" from the foot of the bed; did not threaten Sollman, yell at him, or draw his weapon or display it at any point; and did not place Sollman under arrest or handcuff him.

(b) Sergeant Percifield

Sergeant Percifield's first of two meetings with Sollman occurred at UNMC the day after the accident. Prior to questioning Sollman, Sergeant Percifield asked hospital staff about Sollman's condition and learned from Sollman that Sollman was on pain medication. Sergeant Percifield sought Sollman's consent to obtain Sollman's blood alcohol content result, and Sollman responded that Sergeant Percifield "could, and that [Sergeant Percifield] would get it anyway." Sergeant Percifield estimated that he conversed with Sollman "[a]bout 15 minutes" and noted that he was the only law enforcement officer present; did not display his weapon; and did not yell at or threaten Sollman. Despite Sollman's condition, Sergeant Percifield believed Sollman was "alert," was able to focus on the questions asked, and responded appropriately to questions. Sergeant Percifield also noted that Sollman never expressed a desire not to speak with him and never requested an attorney. However, Sergeant Percifield did not believe Sollman was able to freely move around or leave under his own strength.

(c) Court's Order Regarding Motion to Suppress

Following the hearing, the district court denied Sollman's motion to suppress. The court specifically found that Sollman's statements were made voluntarily, explaining that Sollman was "attentive to the conversation"; that "his responses were clear, appropriate, and articulate"; that he was not in custody for purposes of invoking his Miranda rights; that his statement " ‘I thought it [the speed limit] was 65’ " was admissible; and that Sergeant Percifield's discussion about how he calculated Sollman's speed was not intended to elicit any response.

2. TRIAL

A bench trial was held in December 2019. Stipulations were entered at trial, including that Clausen died of blunt force trauma to her torso received during the accident and that an exhibit containing a call to the 911 emergency dispatch service was admissible. Additional evidence presented to the district court included testimony from Nowling, a witness to Sollman's erratic driving immediately prior to the accident as previously set forth; Deputy Sanderson; Shayna Hill, the phlebotomist who performed...