State v. Adams
| Decision Date | 10 January 1997 |
| Docket Number | No. S-95-669,S-95-669 |
| Citation | 251 Neb. 461,558 N.W.2d 298 |
| Parties | STATE of Nebraska, Appellee, v. Troy ADAMS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts.
2. Jury Instructions: Pleadings: Evidence. Whether requested to do so or not, a trial court has the duty to instruct the jury on issues presented by the pleadings and the evidence. Because of this duty, the trial court, on its own motion, must correctly instruct on the law.
3. Jury Instructions: Appeal and Error. An appellate court may take cognizance of plain error if the trial court's instructions to the jury indicate a probable miscarriage of justice.
4. Jury Instructions. The proper method of presenting a case to a jury in its instructions is by a clear and concise statement by the trial court of the issues which find support in the evidence.
5. Jury Instructions. Whether jury instructions given by a trial court are correct is a question of law.
6. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
7. Appeal and Error. An appellate court always reserves the right to note plain error.
8. Motor Vehicles: Drunk Driving: Proximate Cause. In order to convict a defendant in cases involving alcohol brought under Neb.Rev.Stat. § 60-6,198 (Reissue 1993), the act of driving while under the influence of alcoholic liquor must be the proximate cause of serious bodily injury to another person.
9. Blood, Breath, and Urine Tests. When there is a margin of error in a chemical test for alcohol, the test result must be adjusted and the defendant given the benefit of the adjusted reading.
Thomas M. Kenney, Douglas County Public Defender, and Gary D. Olson, Omaha, for appellant.
Don Stenberg, Attorney General, and Jay C. Hinsley, Lincoln, for appellee.
Troy Adams' district court jury conviction for proximately causing serious bodily injury to Fred Schwartz while Adams was driving (1) under the influence of alcohol or (2) while he had an illegal concentration of alcohol in his body was reversed by the Nebraska Court of Appeals and remanded for a new trial because of what the Court of Appeals found to be an erroneous jury instruction.
After his conviction, Adams was sentenced to prison for not less than 58 nor more than 60 months.
The State of Nebraska petitioned for further review by this court, which we granted.
We not only find that the trial court committed plain error in instructing the jury, as the Court of Appeals determined, but we also find that the trial court committed additional plain error in instructing the jury, which plain error was not addressed by the Court of Appeals in its opinion. See State v. Adams, 96 NCA No. 18, case No. A-95-669 ().
Adams' conviction and sentence are vacated, and this cause is remanded to the Court of Appeals with direction to remand it to the district court for Douglas County for a new trial in conformance with this opinion.
In this court, the State of Nebraska claims that the Court of Appeals erred in finding plain error in the trial court's instructions to the jury regarding the material elements of driving while under the influence and causing serious bodily injury.
The dispositive issues in this cause present questions of law, in connection with which this court has an obligation to reach its own conclusions independent of those reached by the lower courts. See, Hynes v. Hogan, 251 Neb. 404, 558 N.W.2d 35 (1997); State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996); State v. Bowers, 250 Neb. 151, 548 N.W.2d 725 (1996).
Shortly after 4 a.m. on June 22, 1994, at the intersection of 42d and Dodge Streets in Omaha, a motor vehicle being driven by Adams in a westerly direction on Dodge Street collided with a motor vehicle being driven by Schwartz in a southerly direction on 42d Street. Both drivers sustained injuries and were transported to a hospital. The record reflects that there were no witnesses to the accident. Schwartz, who suffered a head injury resulting in brain damage, has little or no memory of how the accident occurred. The record does not disclose Adams' version of the accident.
Subsequently, Adams was charged in the district court for Douglas County with violating Neb.Rev.Stat. § 60-6,198 (Reissue 1993). In substance, the information alleged that on or about June 22, 1994, while operating a motor vehicle in violation of Neb.Rev.Stat. § 60-6,196 or 60-6,197 (Reissue 1993), Adams proximately caused serious bodily injury to Schwartz.
As relevant here, § 60-6,198 provides that "[a]ny person who, while operating a motor vehicle in violation of section 60-6,196 or 60-6,197, proximately causes serious bodily injury to another person shall be guilty of a ... felony...." "Serious bodily injury" is defined as a "bodily injury which involves a substantial risk of death, a substantial risk of serious permanent disfigurement, or a temporary or protracted loss or impairment of the function of any part or organ of the body." § 60-6,198.
Also, § 60-6,196 provides:
(1) It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
(a) While under the influence of alcoholic liquor or of any drug;
(b) When such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood[.]
Section 60-6,197 provides, as relevant here, that
[a]ny person who operates or has in his or her actual physical control a motor vehicle in this state shall be deemed to have given his or her consent to submit to a chemical test or tests of his or her blood ... for the purpose of determining the concentration of alcohol ... in such blood....
In analyzing this cause, we are reminded that whether requested to do so or not, a trial court has the duty to instruct the jury on issues presented by the pleadings and the evidence. See, Reavis v. Slominski, 250 Neb. 711, 551 N.W.2d 528 (1996); Storjohn v. Fay, 246 Neb. 454, 519 N.W.2d 521 (1994); Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993). Because of this duty, the trial court, on its own motion, must correctly instruct on the law, and an appellate court may take cognizance of plain error if such instructions indicate a probable miscarriage of justice. See, Wilson v. Misko, supra; Omaha Mining Co. v. First Nat. Bank, 226 Neb. 743, 415 N.W.2d 111 (1987); Silvey & Co., Inc. v. Engel, 204 Neb. 633, 284 N.W.2d 560 (1979). We are also reminded that the proper method of presenting a case to a jury in its instructions is by a clear and concise statement by the trial court of the issues which find support in the evidence. Wilson v. Misko, supra. As a result of these principles, whether jury instructions given by a trial court are correct is a question of law.
With these principles in mind, we consider the State's assignment of error that the Court of Appeals erred in finding plain error in the trial court's instructions to the jury regarding the material elements of driving while under the influence and causing serious bodily injury.
Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996); Perrine v. State, 249 Neb. 518, 544 N.W.2d 364 (1996). In regard to plain error, an appellate court always reserves the right to note plain error. State v. Randall, 249 Neb. 718, 545 N.W.2d 94 (1996); State v. Hall, 249 Neb. 376, 543 N.W.2d 462 (1996).
The trial court's instruction No. 3, which the State claims is correct, reads:
The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict the defendant of causing serious bodily injury while driving under the influence of alcoholic liquor or drugs are as follows:
1. That ... Adams, on or about the 22d day of June, 1994, in the County of Douglas and State of Nebraska, then and there operated a motor vehicle, and at that time and place was (A) under the influence of alcoholic liquor; OR (B) had a concentration of ten-hundredths of one gram or more by weight of alcohol per hundred milliliters of his blood.
2. That while so operating a motor vehicle [Adams] did proximately cause serious bodily injury to ... Schwartz.
(Emphasis supplied.)
Relying upon its holding in State v. Bartlett, 3 Neb.App. 218, 525 N.W.2d 237 (1994), the Court of Appeals found the trial court's instructions were defective because they failed to state that a material element of the crime charged is that the act of driving while under the influence must proximately cause serious bodily injury to the victim. Based upon our holdings in State v. Batts, 233 Neb. 776, 448 N.W.2d 136 (1989), and State v. Ring, 233 Neb....
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