State v. Cadwallader
| Decision Date | 13 January 1989 |
| Docket Number | No. 87-990,87-990 |
| Parties | STATE of Nebraska, Appellee, v. Gary L. CADWALLADER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Double Jeopardy. The double jeopardy clauses of the Nebraska and U.S. Constitutions protect against multiple punishments for the same offense.
2. Constitutional Law: Double Jeopardy: Indictments and Informations: Lesser-Included Offenses. In a prosecution on a multiple-count information based on a single event or the same transaction, constitutional protection against double jeopardy prevents convictions for different degrees of the same offense arising out of the same event or transaction and prohibits a conviction for the lesser offense included in a greater offense.
3. Presentence Reports: Crime Victims: Sentences. Victim impact statements and similar materials may be included in presentence reports but, ordinarily, cannot be used as a basis for determining the sentence to be imposed.
4. Crime Victims: Sentences. A trial judge should take into account facts obtained from a victim's statement under the provisions of Neb.Rev.Stat. § 29-2261 (Reissue 1985), as all facts pertinent to sentencing should be considered, but a judge must not and cannot allow the judgments and conclusions of the victim to be substituted for those of the judge in imposing sentence.
5. Sentences. The sentence should be such as to provide some deterrence; of sufficient length to at least afford a possibility of rehabilitation; of sufficient severity so as not to depreciate the seriousness of the crime; and, in a proper case, such as to provide some measure of protection to society by removing the offender temporarily from society.
6. Sentences: Prisoners: Probation and Parole. In fixing the term of a sentence to imprisonment, the trial court may consider the factors that may determine how much of a particular sentence must be served before the prisoner can be released.
7. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.
Bruce Dalluge, of Morrissey, Morrissey & Dalluge, Tecumseh, for appellant.
Robert M. Spire, Atty. Gen., and Elaine A. Catlin, Minden, for appellee.
In separate informations, the defendant, Gary L. Cadwallader, was charged with two counts of felony motor vehicle homicide, and with operating a motor vehicle while under the influence of alcoholic liquor, third offense. Another count, charging operating a motor vehicle while his operator's license had been revoked, was dismissed pursuant to a plea bargain.
Upon pleas of no contest, the defendant was sentenced to 5 years' imprisonment on each of the motor vehicle homicide counts, and to 6 months' imprisonment, a fine of $500, and revocation of his operator's license for 15 years on the charge of operating a motor vehicle while under the influence of alcoholic liquor, third offense. All sentences run consecutively and are to be served in a facility of the Department of Correctional Services. Since all three sentences were the maximum permitted by statute, the defendant is entitled to credit for 149 days of presentence incarceration.
The defendant has appealed. His assignments of error, all of which relate to the sentences imposed on the defendant, may be summarized as follows: (1) The sentences constitute double jeopardy; (2) it was error for the trial court to consider victim impact statements and similar materials; (3) it was error for the trial court to consider the effect of parole and good time upon any sentence imposed; and (4) the sentences are excessive.
The charges are the result of an automobile accident that occurred near Table Rock, Nebraska, on May 5, 1987. The defendant was driving west on Highway 4 with David Huffman as a passenger in his vehicle. Tamberlyn LaVigne was driving east on the same highway. At a point approximately 2.7 miles east of Table Rock, the defendant's vehicle left the roadway twice and then crossed the centerline of the highway and collided with the LaVigne automobile in the eastbound traffic lane. Both Huffman and LaVigne died as a result of injuries sustained in the accident. Several witnesses who talked with the defendant just before the accident recognized that the defendant was intoxicated. A blood alcohol test made just after the accident showed the defendant's blood contained .178 percent alcohol.
The first assignment of error is based upon our decision in State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987). In the Hoffman case, the defendant, after a bench trial, was convicted of second degree assault, motor vehicle homicide, and drunk driving.
Neb.Rev.Stat. § 28-306 (Reissue 1985), the Nebraska motor vehicle homicide statute, provides:
(1) A person who causes the death of another unintentionally while engaged in the operation of a motor vehicle in violation of the law of the State of Nebraska or in violation of any city or village ordinance commits motor vehicle homicide.
(2) Except as provided in subsection (3) of this section, motor vehicle homicide is a Class I misdemeanor.
(3) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 39-669.01, 39-669.03, or 39-669.07, motor vehicle homicide is a Class IV felony.
Motor vehicle homicide can be committed in a number of different ways because the operation of the motor vehicle need only be in violation of any state law or city or village ordinance. In the Hoffman case, one of the violations proved was operating a motor vehicle while under the influence of alcoholic liquor. Since that was a violation on which the conviction on the motor vehicle homicide count rested, and separate consecutive sentences were imposed on each count, the State could not punish the defendant separately for driving while under the influence of alcoholic liquor. As stated in the Hoffman case at 146-47, 416 N.W.2d at 241:
In finding Hoffman guilty of motor vehicle homicide (count II), the district court found Hoffman guilty of drunk driving in violation of § 39-669.07, and also found Hoffman guilty of the separate charge of drunk driving alleged in count III. There is no question that the drunk driving, as a violation of a Nebraska statute necessary for the crime of motor vehicle homicide charged in count II, was the identical prohibited act and the exact offense charged in count III. Consequently, count II and count III involved the same act--drunk driving.... The constitutional protection against double jeopardy, therefore, applies to Hoffman's convictions on counts II and III. In Hoffman's case, the district court imposed consecutive sentences for all the convictions. The consecutive sentences imposed on Hoffman for motor vehicle homicide and drunk driving are cumulative sentences for the same offense and constitute separate and multiple punishments for the same offense, a denial of the protection against double jeopardy afforded by the Constitutions, both state and federal. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).
The information filed in this case alleged felony motor vehicle homicides by operating a motor vehicle "in violation of Sections 39-669.01, 39-669.03, or 39-669.07." Neb.Rev.Stat. § 39-669.01 (Reissue 1988) is the reckless driving statute; Neb.Rev.Stat. § 39-669.03 (Reissue 1988) is the willful reckless driving statute; and Neb.Rev.Stat. § 39-669.07 (Reissue 1988) is the driving under the influence of alcoholic liquor statute. Unlike the Hoffman case, there was no finding by the trial court in this case that the motor vehicle homicides were the result of the defendant's operation of a motor vehicle while under the influence of intoxicating liquor. The fact that the information in this case alleged the offenses in the alternative and there was no finding by the trial court as to which violation was the basis for the findings of guilty distinguishes this case from the Hoffman case and prevents a finding of double jeopardy because of cumulative sentences for the same offense.
The second assignment of error relates to victim impact statements and similar materials which were included in the presentence report and were considered at the sentencing hearing. The defendant contends that it was improper for the court to consider these matters and that Neb.Rev.Stat. § 29-2261 (Reissue 1985), which provides that a presentence report should include written statements submitted to the county attorney or probation officer by a victim, should be declared unconstitutional.
Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), cited by the defendant, involved the admission into evidence of a victim impact statement in a capital case in which the defendant had elected to have his sentence determined by the jury. The majority of the Court held the statement was irrelevant and inadmissible in a capital sentencing case but...
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