State v. Thompson
301 Neb. 472
| Neb. | 2018Background
- On Oct. 24, 2016, Benjamin M. Thompson’s vehicle struck another car; his three children in the back seat suffered serious and life‑threatening injuries. Two children sustained serious brain injuries; one child’s prognosis was poor.
- Officers located Thompson at a park, observed signs of alcohol use, found open and empty alcohol containers and a bottle of lorazepam in his vehicle, and arrested him; a warrant authorizing a blood draw returned a BAC of .115.
- Thompson was charged with DUI (fifth offense), two counts of child abuse resulting in serious bodily injury (Class II), one count of child abuse (Class IIIA), and leaving the scene of an injury accident (Class III).
- Pretrial, Thompson moved to: (1) recuse the district judge alleging an ex parte communication; (2) suppress the blood test as lacking probable cause for the warrant; and (3) seek a Franks hearing alleging falsehoods in the warrant affidavit. The district court denied all three motions.
- After a 7‑day jury trial, Thompson was convicted on all counts and sentenced to terms including determinate sentences and license revocations. He appealed, challenging denial of recusal, suppression/Franks rulings, and several sentencing errors.
Issues
| Issue | Plaintiff's Argument (Thompson) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether judge should have recused for alleged ex parte communication | Court implied it would allow amended charges if child died, suggesting an ex parte communication; recusal requested | Prosecutor submitted affidavit denying any ex parte contact; court implicitly credited absence of such communication | No reversible error: court used wrong analytic framing but Thompson failed to prove an ex parte communication, so denial affirmed |
| Whether warrant affidavit established probable cause for blood draw (motion to suppress) | Affidavit insufficient to establish probable cause; exclusion required; if affidavit defective, good‑faith exception inapplicable | Warrant supported and in any event other evidence showed impairment | Court avoided Fourth Amendment/Franks merits, holding any error in admitting blood results was harmless given overwhelming other evidence of intoxication |
| Whether a Franks hearing was required (alleged false statements in affidavit) | Affidavit contained false/misleading statements made knowingly or recklessly, requiring suppression | State denied material misrepresentations and argued absence of prejudice | Denial of Franks motion affirmed as any error was harmless beyond a reasonable doubt |
| Whether sentencing contained plain error (license revocations; determinate sentences) | (Implicit) sentences and revocations were lawful as imposed | State later argued license revocations for child‑abuse counts unauthorized and lower‑level felonies required indeterminate sentences when tied to higher felonies | Court found plain error: license revocations for child‑abuse convictions unauthorized; counts 2–5 sentences (and related determinate terms) must be vacated and remanded for resentencing |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (Franks standard for challenging veracity of warrant affidavits)
- State v. Thomas, 268 Neb. 570 (Neb. 2004) (recusal/ex parte communication principles)
- State v. Taylor, 300 Neb. 629 (Neb. 2018) (Fourth Amendment suppression review standard)
- State v. Vanness, 300 Neb. 159 (Neb. 2018) (plain error doctrine explained)
- State v. Kidder, 299 Neb. 232 (Neb. 2018) (harmless error and appellate inquiry into prejudice)
- State v. Artis, 296 Neb. 172 (Neb. 2017) (distinction between determinate and indeterminate sentences)