State v. Huff, S–10–562.

• Court: Supreme Court of Nebraska
• Writing for the Court: Double Jeopardy: Lesser–Included Offenses: Appeal and Error.
• Citation: 282 Neb. 78,802 N.W.2d 77
• Parties: STATE of Nebraska, appellee,v.Herchel Harold HUFF, appellant.
• Docket Number: No. S–10–562.,S–10–562.
• Decision Date: 26 August 2011

282 Neb. 78
802 N.W.2d 77

STATE of Nebraska, appellee,
v.
Herchel Harold HUFF, appellant.

No. S–10–562.

Supreme Court of Nebraska.

Aug. 26, 2011.

[802 N.W.2d 82]

Syllabus by the Court

[282 Neb. 78] 1. Double Jeopardy: Lesser–Included Offenses: Appeal and Error. Whether two provisions are the same offense for double jeopardy purposes presents a question of law, on which an appellate court reaches a conclusion independent of the court below.

2. Double Jeopardy. The Double Jeopardy Clauses of both the federal and the Nebraska Constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

[282 Neb. 79] 3. Double Jeopardy: Proof. Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or one is whether each provision requires proof of a fact which the other does not.

4. Double Jeopardy: Sentences: Proof. The Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or “same elements.” test asks whether each offense contains an element not contained in the other, or, more precisely,

[802 N.W.2d 83]

whether each provision requires proof of a fact which the other does not. If not, they are the same offense and double jeopardy bars additional punishment. If so, they are not the same offense and double jeopardy is not a bar to additional punishment.

5. Constitutional Law: Criminal Law: Statutes. The test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), is an aid to statutory interpretation, not a constitutional demand.

6. Criminal Law: Statutes. For purposes of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the possible predicates of a compound offense should not be incorporated into the offense when determining whether it contains elements that another statute does not.

7. Homicide: Motor Vehicles: Lesser–Included Offenses. Under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), unlawful act manslaughter is a lesser-included offense of motor vehicle homicide.

8. Double Jeopardy: Legislature: Statutes: Trial: Sentences. Where a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), cumulative punishment may be imposed in a single trial.

9. Sentences: Presumptions. The collateral consequences of a second conviction make it as presumptively impermissible to impose as it would be to impose any other unauthorized cumulative sentence.

10. Appeal and Error. Matters previously addressed in an appellate court are not reconsidered unless the petitioner presents materially and substantially different facts.

11. Appeal and Error. Under the law-of-the-case doctrine, the holdings of an appellate court on questions presented to it in reviewing proceedings of the trial court become the law of the case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either expressly or by necessary implication.

12. Actions: Appeal and Error. The law-of-the-case doctrine operates to preclude a reconsideration of substantially similar, if not identical, issues at successive stages of the same suit.

13. Lesser–Included Offenses: Proof. A “lesser offense” is the one for which fewer elements are required to be proved. A court focuses on the elements of the offenses, and not comparison of the penalties.

14. Lesser–Included Offenses: Convictions. When a defendant is convicted of both a greater and a lesser-included offense, the conviction and sentence on the lesser charge must be vacated.

15. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Judgments: Appeal and Error. A trial court's ruling on a motion to [282 Neb. 80] suppress evidence, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous.

16. Drunk Driving: Blood, Breath, and Urine Tests: Police Officers and Sheriffs: Probable Cause: Arrests. If a law enforcement officer has probable cause to arrest a suspect for driving under the influence of alcohol and reasonable grounds to believe that the suspect committed driving under the influence of alcohol,

[802 N.W.2d 84]

the officer may arrest the suspect and require a blood test notwithstanding the fact that a preliminary breath test was not administered.

17. Police Officers and Sheriffs: Probable Cause: Arrests. Under the collective knowledge doctrine, the existence of probable cause justifying a warrantless arrest is tested by the collective information possessed by all the officers engaged in a common investigation.

18. Statutes: Appeal and Error. Statutory interpretation is a question of law on which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

19. Prior Convictions: Drunk Driving: Blood, Breath, and Urine Tests: Sentences: Words and Phrases. A “prior conviction” for purposes of enhancing a conviction for driving under the influence is defined in terms of other driving under the influence laws, while a “prior conviction” for purposes of enhancing a conviction for refusing a chemical test is defined in terms of refusal laws. There is no cross-over between driving under the influence and refusal convictions for purposes of sentence enhancement.

20. Statutes: Legislature: Appeal and Error. In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

21. Criminal Law: Statutes. A fundamental principle of statutory construction requires that penal statutes be strictly construed.

22. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion.

23. Constitutional Law: Miranda Rights: Appeal and Error. Requests for counsel, as well as actual silence, constitute “silence” for purposes of analyzing potential violations of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

24. Constitutional Law: Miranda Rights: Arrests. The State's impeachment use of a defendant's pre- Miranda silence, whether prearrest or postarrest, is not unconstitutional.

25. Trial: Evidence. Only evidence tending to suggest a decision on an improper basis is unfairly prejudicial.

26. Rules of Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determinations of prejudice under Neb. Evid. R. 403, so a trial court's decision under that rule will not be reversed absent an abuse of discretion.

27. Motions for Mistrial: Proof. A defendant faces a higher threshold than merely showing a possibility of prejudice when attempting to prove error predicated on the failure to grant a mistrial.

[282 Neb. 81] 28. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.

29. Appeal and Error: Words and Phrases. Plain error is error of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

30. Trial: Expert Witnesses. Under the principles set forth in

[802 N.W.2d 85]

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion.

31. Trial: Expert Witnesses: Pretrial Procedure. To sufficiently call specialized knowledge into question under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), is to object with enough specificity so that the court understands what is being challenged and can accordingly determine the necessity and extent of any pretrial proceeding. The initial task falls on the party opposing expert testimony to sufficiently call into question the reliability of some aspect of the anticipated testimony.

32. Trial: Expert Witnesses: Pretrial Procedure: Notice. Assuming that the opponent has been given timely notice of the proposed testimony, the opponent's challenge to the admissibility of evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), should take the form of a concise pretrial motion. It should identify, in terms of the Daubert and Schafersman factors, what is believed to be lacking with respect to the validity and reliability of the evidence and any challenge to the relevance of the evidence to the issues of the case. In order to preserve judicial economy and resources, the motion should include or incorporate all other bases for challenging the admissibility, including any challenge to the qualifications of the expert.

33. Trial: Courts. A trial court has broad discretion in determining how to perform its gatekeeper function.

34. Jury Instructions: Appeal and Error....