State v. Thompson
919 N.W.2d 122
Neb.2018Background
- On Oct. 24, 2016, Thompson’s car struck another vehicle; his three children were passengers and two suffered serious, life‑threatening injuries.
- Police located a damaged white Nissan at a park; Thompson was found near the car, smelled of alcohol, and was arrested; alcohol containers and a lorazepam bottle were found in/near the vehicle.
- A warrant was obtained for Thompson’s blood; the test showed a BAC of .115; Thompson was charged with DUI (fifth offense), multiple counts of child abuse (including two counts resulting in serious bodily injury), and leaving the scene.
- Pretrial, Thompson moved to recuse the district judge (alleging an ex parte comment about possible charge amendment), moved to suppress the blood evidence for lack of probable cause, and filed a Franks motion alleging false statements in the warrant affidavit; the district court denied all three motions.
- A jury convicted Thompson on all counts; on appeal he challenged (1) the denial of recusal, (2) denial of suppression/Franks relief, and (3) sentencing errors.
- The Nebraska Supreme Court affirmed the convictions, found any error admitting the blood test harmless, but vacated and remanded several sentences (counts 2–5) for resentencing because indeterminate sentences were required and some license revocations were unauthorized.
Issues
| Issue | Thompson's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the judge should have recused for an alleged ex parte communication | The judge’s remark (that charges could be amended if the child died) showed an ex parte communication and required recusal | No ex parte communication occurred; any remark was a presumption and did not show partiality | No error: Thompson failed to prove an ex parte communication, so recusal was not required |
| Whether the warrant affidavit supported probable cause for a blood draw (and whether suppression was required) | Affidavit lacked sufficient facts to establish probable cause; exclusion warranted and good‑faith exception inapplicable | Affidavit was sufficient; evidence admissible | Court avoided ruling on merits because any error in admitting blood evidence was harmless beyond a reasonable doubt |
| Whether the warrant affidavit contained false statements (Franks) | Affidavit included knowingly false or recklessly made statements justifying suppression | No material false statements; Franks hearing and suppression were not warranted | Court did not reach Franks merits because admission (if erroneous) was harmless given abundant other evidence of impairment |
| Whether sentencing and license revocations were lawful | Thompson did not raise all sentencing errors; argued sentences imposed were permissible | State argued license revocations for child‑abuse counts lacked statutory authority and certain sentences should have been indeterminate | Court found plain error: license revocations for child‑abuse convictions unauthorized; sentences for counts 2–5 must be indeterminate per Nebraska statutes — vacated counts 2–5 sentences and remanded for resentencing |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (establishes test for attacking veracity of warrant affidavit and when a Franks hearing is required)
- State v. Thomas, 268 Neb. 570 (Neb. 2004) (recusal and ex parte communication standards)
- State v. Taylor, 300 Neb. 629 (Neb. 2018) (appellate standard for suppression review: historical facts for clear error; legal questions de novo)
- State v. Vanness, 300 Neb. 159 (Neb. 2018) (plain error doctrine articulated)
- State v. Kidder, 299 Neb. 232 (Neb. 2018) (harmless error review looks to whether verdict was attributable to the error)
- State v. Artis, 296 Neb. 172 (Neb. 2017) (explains determinate vs. indeterminate sentencing distinction)