State v. Hood, 301 Neb. 207

Background

December 2013 head-on collision on U.S. Highway 26: Hood was driving one vehicle; the other driver died and a passenger survived with severe injuries.
At scene and at hospital officers and medical personnel detected strong alcohol odor on Hood; a partially full bottle of brandy was found in Hood’s vehicle; Hood refused a preliminary breath test and a requested blood draw (citing needle use), but hospital staff drew blood for diagnostic purposes and law enforcement later subpoenaed those samples (which were suppressed pretrial).
Hood testified or made statements about looking at birds immediately before the crash; witnesses described erratic driving with no brake application and significant swerving and overcorrection.
Pretrial/suppression rulings: court suppressed the hospital-obtained blood/urine (subpoenaed) evidence, but denied Hood’s motion to exclude evidence of his refusal to submit to a warrantless blood draw post-Birchfield, relying on Neb. Rev. Stat. § 60-6,197 and State v. Rask.
Trial: State admitted the victim’s death certificate over Hood’s confrontation objection; jury convicted Hood of motor vehicle homicide, manslaughter, DUI causing serious bodily injury, and refusal to submit to a preliminary breath test; court imposed consecutive prison terms totaling 73–75 years.
Appeal: Hood raised (1) ineffective assistance for failing to pursue a diminished-capacity defense; (2) Birchfield-based challenge to admission of refusal evidence; and (3) Confrontation Clause challenge to admission of the death certificate.

Issues

Issue	Hood's Argument	State's Argument	Held
1) Ineffective assistance — failure to pursue diminished-capacity defense	Trial counsel should have developed/raised diminished capacity (psychosis, schizophrenia, bipolar) based on Hood’s confused/erratic behavior	Record shows no viable diminished-capacity theory; counsel’s choice reasonable; Hood made only generalized allegations	Record conclusively refutes deficient performance; claim fails as matter of law
2) Admissibility of refusal evidence post-Birchfield	Birchfield bars use of refusal to a warrantless blood draw as evidence in DUI prosecutions	Neb. statute §60-6,197(6) permits admission; prior Nebraska decisions uphold admission; Birchfield does not prohibit using refusal as evidence	Evidence of refusal to submit to a warrantless blood draw is admissible in DUI prosecutions under Nebraska law
3) Confrontation — admission of death certificate without author testimony	Death certificate statements are testimonial; admitting it without author violated Confrontation Clause	Nebraska precedent treats death certificates as not competent proof of cause of death when that is contested; here time/place/cause were uncontested and certificate was cumulative	Admission was error but harmless beyond a reasonable doubt given cumulative, uncontested evidence
4) Harmless error and preservation/standard of review	(implicit) errors require reversal unless prejudicial	Appellate harmless-error standards apply; record shows verdict unaffected by challenged rulings	Any evidentiary errors were harmless; convictions and sentences affirmed

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard requiring deficient performance and prejudice)
Birchfield v. North Dakota, 136 S. Ct. 2160 (Fourth Amendment limits on warrantless blood draws and discussion of implied-consent consequences)
Crawford v. Washington, 541 U.S. 36 (testimonial statements and Confrontation Clause framework)
State v. Rask, 294 Neb. 612 (Nebraska holding that refusal evidence is admissible under §60-6,197)
State v. McCumber, 295 Neb. 941 (analyzing §60-6,197 in light of Birchfield and limits on warrantless blood-draw prosecutions)
State v. Hoerle, 297 Neb. 840 (post-Birchfield treatment of consent, voluntariness, and good-faith exceptions)
State v. Vosler, 216 Neb. 461 (mental conditions relevant to specific intent and diminished-capacity discussion)