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STATE v. HOOD

Cite as 301 Neb. 207

State of Nebraska, appellee, v. 

Edward Hood, appellant.

___ N.W.2d ___

Filed October 5, 2018. No. S-17-637.

1. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement.

2. Effectiveness of Counsel: Appeal and Error. An appellate court determines as a matter of law whether the record conclusively shows that 

(1) a defense counsel’s performance was deficient or (2) a defendant 

was or was not prejudiced by a defense counsel’s alleged deficient 

performance.

3. Criminal Law: Juries: Evidence: Appeal and Error. In a jury trial of 

a criminal case, an erroneous evidentiary ruling results in prejudice to a 

defendant unless the error was harmless beyond a reasonable doubt.

4. Verdicts: Juries: Appeal and Error. Harmless error review looks to 

the basis on which the jury actually rested its verdict. The inquiry is 

not whether in a trial that occurred without the error, a guilty verdict 

would surely have been rendered, but whether the actual guilty verdict 

rendered was surely unattributable to the error.

5. Trial: Evidence. The erroneous admission of evidence is generally 

harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding 

by the trier of fact.

6. Effectiveness of Counsel: Records: Appeal and Error. A claim of 

ineffective assistance of counsel may be resolved when the record on 

direct appeal is sufficient to either affirmatively prove or rebut the merits of the claim. The record is sufficient if it establishes either that trial 

counsel’s performance was not deficient, that the appellant will not be 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/19/2018 09:12 AM CDT
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able to establish prejudice, or that trial counsel’s actions could not be 

justified as a part of any plausible trial strategy.

7. Effectiveness of Counsel: Proof: Appeal and Error. When making an 

ineffective assistance of counsel claim on direct appeal, allegations of 

prejudice are not required. However, a defendant must make specific 

allegations of the conduct that he or she claims constitutes deficient 

performance.

8. Postconviction: Effectiveness of Counsel: Records: Claims: Appeal 

and Error. In the case of an argument presented for the purpose of 

avoiding procedural bar to a future postconviction proceeding, appellate 

counsel must present a claim with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided 

upon the trial record and (2) a district court later reviewing a petition 

for postconviction relief to be able to recognize whether the claim was 

brought before the appellate court.

9. Effectiveness of Counsel: Proof. To show deficient performance under 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984), a defendant claiming ineffective assistance of counsel must 

show that counsel’s performance did not equal that of a lawyer with 

ordinary training and skill in criminal law.

10. Criminal Law: Intoxication: Mental Competency. As a matter of law, 

voluntary intoxication is not a complete defense to a crime, even when 

it produces psychosis or delirium.

11. Criminal Law: Insanity: Intent. Although there is but one type of 

insanity which will support a finding of not guilty or not responsible by 

reason of insanity, there are a variety of mental conditions which bear 

upon the ability to form a specific intent.

12. Drunk Driving: Blood, Breath, and Urine Tests. Evidence of a 

driver’s refusal to submit to a warrantless blood draw is admissible in a 

prosecution for driving under the influence.

13. Criminal Law: Evidence. A death certificate, standing alone, is not 

competent evidence of the cause of death in a controversy where the 

cause of death is a material issue.

14. Criminal Law: Appeal and Error. Harmless error jurisprudence recognizes that not all trial errors, even those of constitutional magnitude, 

entitle a criminal defendant to the reversal of an adverse trial result.

15. Appeal and Error. It is only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt, which requires 

a reversal.

Appeal from the District Court for Garden County: Derek C. 

Weimer, Judge. Affirmed.
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STATE v. HOOD

Cite as 301 Neb. 207

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder, 

Chaloupka & Longoria, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and

Papik, JJ.

Funke, J.

Edward Hood appeals from his convictions for motor vehicle homicide, manslaughter, driving under the influence of 

alcohol causing serious bodily injury, and refusal to submit to a 

preliminary breath test. The court sentenced Hood to consecutive terms totaling between 73 and 75 years’ imprisonment. We 

affirm the judgment of the trial court.

BACKGROUND

In December 2013, a two-vehicle, head-on collision 

occurred on U.S. Highway 26 in Garden County near Oshkosh, 

Nebraska. Hood was driving one of the vehicles; the driver of 

the other vehicle died at the scene, and the passenger of that 

vehicle survived after being in a coma for 9 days and sustaining extensive injuries.

After the accident, an off-duty Nebraska State Patrol trooper 

who came upon the accident asked Hood what happened and 

Hood said that just prior to the accident, he was looking out the 

window at a large flock of birds and when he looked back at 

the road, he suddenly observed a car in front of him. A trained 

emergency medical technician and volunteer firefighter who 

attended to Hood later testified he smelled a “[v]ery strong” 

odor of alcohol coming from Hood.

Garden County Deputy Sheriff Dwight Abbott helped Hood 

into the front seat of Abbott’s cruiser and drove Hood to a 

local hospital. Abbott did not arrest or restrain Hood at that 

time. Abbott testified that during the drive, he smelled alcohol 

coming from Hood and noticed Hood’s speech was slow and 
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his eyes were bloodshot. Hood told Abbott that the accident 

happened “real fast” after he “looked out the window and saw 

the birds.”

Meanwhile, officers at the scene continued to investigate the 

accident. There was evidence that Hood’s vehicle had swerved 

across the oncoming lane of traffic and drove off that side of 

the roadway for about 60 feet, then crossed all the way back 

through his lane and past the shoulder line, and then made 

a heavy overcorrection and turned back across his lane and 

entered the oncoming lane of traffic. The victim who was driving pulled onto the shoulder to attempt to evade Hood, but 

Hood’s vehicle was traveling “completely sideways” when its 

front passenger side struck the front driver’s side wheel of the 

other vehicle. There was no indication that Hood ever applied 

the brakes.

Garden County Chief Deputy Sheriff Randy Ross testified 

that he opened Hood’s vehicle and smelled a sweet, alcoholic 

odor. Ross located a bottle of brandy, which was two-thirds 

full, in a bag behind the center console. Ross relayed this 

information to Abbott, and Abbott questioned Hood about the 

accident while they were at the hospital.

Abbott asked Hood if he had been drinking. Hood replied 

that “he drank four beers last night” and said that “last night 

was a hard night.” Abbott asked Hood to take a preliminary 

breath test, and after Hood refused, Abbott placed Hood under 

arrest for driving under the influence. Abbott read Hood the 

“Post-Arrest Chemical Test Advisement Form” and then asked 

Hood to submit to a blood test. Hood refused, stating he was a 

recovering heroin addict and “doesn’t do needles.”

Hood was then turned over to medical personnel. Tracy 

Ray, a physician assistant at the hospital, examined and treated 

Hood. Ray was initially at the accident scene, but then went to 

the hospital in order to treat those injured in the accident. Ray 

testified that Hood had bloodshot eyes, slurred speech, and 

alcohol on his breath. Ray drew blood from Hood, with Hood’s 

consent, as part of a diagnostic evaluation. Law enforcement 
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subsequently subpoenaed the hospital and obtained Hood’s 

blood and urine samples.

Prior to trial, Hood filed a motion to suppress the blood 

and urine samples collected by the hospital. The court granted 

Hood’s motion and suppressed the subpoenaed evidence. 

During trial, Hood made an oral motion in limine based on the 

U.S. Supreme Court’s decision in Birchfield v. North Dakota1 to 

preclude the State from introducing evidence of Hood’s refusal 

to submit to a blood test to prove the remaining charges. The 

court overruled Hood’s motion based on this court’s decision 

in State v. Rask,

2

 which held that Neb. Rev. Stat. § 60-6,197 

(Cum. Supp. 2016) permits evidence of refusal to prove driving 

under the influence (DUI) charges.

At trial, during direct examination of Ross, the State offered 

the victim’s death certificate into evidence. The document carried the seal of the Nebraska Department of Health and Human 

Services and was signed by the Garden County Attorney, indicating that the victim’s death was caused by “Whole [B]ody 

Severe Trauma” as the result of a “Two Vehicle Collision” 

on Highway 26 and that her death occurred at 2:52 p.m. on 

December 7, 2013. The court received the exhibit over Hood’s 

objection regarding his right to confront the author of statements made in the death certificate.

The jury convicted Hood of motor vehicle homicide, manslaughter, and driving under the influence of alcohol causing 

serious bodily injury, and the court later found Hood guilty 

of refusal to submit to a preliminary breath test. Following a 

presentence investigation, and after the court received evidence 

of Hood’s two prior DUI convictions from Florida and New 

Mexico, the district court sentenced Hood to serve consecutive terms of 49 to 50 years for motor vehicle homicide, 19 to 

20 years for manslaughter, and 5 years for driving under the 

1 Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 

560 (2016).

2 State v. Rask, 294 Neb. 612, 883 N.W.2d 688 (2016).
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influence of alcohol causing serious bodily injury. The court 

gave Hood credit for time served, ordered Hood to pay a $100 

fine for refusal to submit to a preliminary breath test, and 

revoked Hood’s operator’s license for a period of 15 years.

Hood filed a notice of appeal, the trial court appointed 

appellate counsel, and we moved the case to our docket.3

ASSIGNMENTS OF ERROR

Hood assigns, restated, that (1) the performance of Hood’s 

trial counsel was deficient and unfairly prejudiced Hood’s 

right to a fair trial, (2) the district court erred as a matter of 

law in admitting evidence of Hood’s refusal to submit to a 

blood test, and (3) the district court violated Hood’s right to 

confrontation by admitting the victim’s death certificate without sponsoring testimony.

STANDARD OF REVIEW

[1,2] Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to 

address the claim without an evidentiary hearing or whether 

the claim rests solely on the interpretation of a statute or 

constitutional requirement.4 We determine as a matter of law 

whether the record conclusively shows that (1) a defense 

counsel’s performance was deficient or (2) a defendant was 

or was not prejudiced by a defense counsel’s alleged deficient 

performance.5

[3-5] In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the error 

was harmless beyond a reasonable doubt.6 Harmless error 

review looks to the basis on which the jury actually rested 

3 See Neb. Rev. Stat. § 24-1106 (Supp. 2017).

4 State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).

5 Id.

6 State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
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its verdict. The inquiry is not whether in a trial that occurred 

without the error, a guilty verdict would surely have been 

rendered, but whether the actual guilty verdict rendered was 

surely unattributable to the error.7 The erroneous admission 

of evidence is generally harmless error and does not require 

reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier 

of fact.8

ANALYSIS

Hood Failed to Show That Trial Counsel’s

Performance Was Deficient

as Matter of Law

Hood argues that his trial counsel should have pursued a 

defense based on the theory that Hood had diminished mental 

capacity. Hood asserts that he may have been suffering from 

a mental illness and used alcohol as self-medication. He suggests that following the collision, he was acting confused and 

erratic and was making strange and nonsensical statements, 

and that therefore, he was possibly suffering from psychosis, schizophrenia, or bipolar disorder. Hood claims that “the 

record contained evidence that, if fully developed, would have 

supported a defense based on diminished capacity”9 and that 

Hood could have argued he had been rendered unable to distinguish right from wrong.

The State argues that Hood’s allegations are insufficient, 

because Hood did not allege that he actually lacked the ability 

to distinguish right from wrong, but merely asserted that “trial 

counsel did not explore the potential application”10 of a diminished capacity defense. The State argues the record refutes 

Hood’s ineffective assistance of counsel allegations.

7 Id.

8 Id.

9 Brief for appellant at 12.

10 Id.
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When a defendant’s trial counsel is different from his or her 

counsel on direct appeal, the defendant must raise on direct 

appeal any issue of trial counsel’s ineffective performance 

which is known to the defendant or is apparent from the 

record. Otherwise, the issue will be procedurally barred.11

[6] However, the fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean 

that it can be resolved.12 Such a claim may be resolved when 

the record on direct appeal is sufficient to either affirmatively 

prove or rebut the merits of the claim.13 The record is sufficient if it establishes either that trial counsel’s performance 

was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy.14

[7,8] When making an ineffective assistance of counsel claim on direct appeal, allegations of prejudice are not 

required.15 However, a defendant must make specific allegations of the conduct that he or she claims constitutes deficient 

performance.16 In the case of an argument presented for the 

purpose of avoiding procedural bar to a future postconviction proceeding, appellate counsel must present a claim with 

enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial 

record and (2) a district court later reviewing a petition for 

postconviction relief to be able to recognize whether the claim 

was brought before the appellate court.17 A claim insufficiently 

stated is no different than a claim not stated at all.18

11 Cotton, supra note 4.

12 Id.

13 Id.

14 Id.

15 State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).

16 Id.

17 Cotton, supra note 4.

18 Id.
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[9] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,

19 the defendant must show 

that his or her counsel’s performance was deficient and that 

this deficient performance actually prejudiced the defendant’s 

defense.20 To show deficient performance, a defendant must 

show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law.21 To show 

prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result 

of the proceeding would have been different.22 A reasonable 

probability is a probability sufficient to undermine confidence 

in the outcome.23 The two prongs of this test may be addressed 

in either order, and the entire ineffectiveness analysis should be 

viewed with a strong presumption that counsel’s actions were 

reasonable.24 We will not second-guess trial counsel’s reasonable strategic decisions.25

In support of his argument that trial counsel should have 

pursued a diminished capacity defense, Hood claims there is 

evidence that he was in a state of confusion at the scene and 

after the accident. Hood points to the testimony of Ray, the 

physician assistant, who observed Hood to have “delayed cognitive responses” and stated that when he asked Hood a question, “there was a period of time before he would give me an 

answer.” Ray said that meant that Hood was confused, because 

“anytime we have somebody that has repetitive questions or 

inaccurate answers to the same question, that’s a state of confusion for some reason.”

19 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

20 Cotton, supra note 4.

21 Id.

22 Id.

23 Id.

24 Id.

25 See State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018).
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Additionally, Hood referred to the fact that his explanation 

of watching a flock of birds just prior to the accident “made 

no sense, and was given to multiple officers.”26 For example, 

Ross testified that “[Hood] told me he was just looking at the 

birds that were flying overhead and I believe during that meeting he, he told us that it was God’s time for her to go,” referring to the deceased victim.

Hood does not allege that the facts of this case would 

have satisfied an insanity defense based on Neb. Rev. Stat. 

§ 29-2203 (Reissue 2016). The fact that a defendant has 

some form of mental illness or defect does not by itself 

establish insanity.27 Section 29-2203 was amended to provide 

that “insanity does not include any temporary condition that 

was proximately caused by the voluntary ingestion, inhalation, injection, or absorption of intoxicating liquor, any drug 

or other mentally debilitating substance, or any combination thereof.”28

[10] Hood does not argue his counsel should have pursued a 

defense based on intoxication under Neb. Rev. Stat. § 29-122 

(Reissue 2016). Section 29-122 states in part:

Intoxication is not a defense to any criminal offense 

and shall not be taken into consideration in determining 

the existence of a mental state that is an element of the 

criminal offense unless the defendant proves, by clear and 

convincing evidence, that he or she did not (1) know that 

it was an intoxicating substance when he or she ingested, 

inhaled, injected, or absorbed the substance causing the 

intoxication or (2) ingest, inhale, inject, or absorb the 

intoxicating substance voluntarily.

Voluntary intoxication is not a complete defense to a crime, 

even when it produces psychosis or delirium.29

26 Brief for appellant at 12.

27 State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).

28 § 29-2203(4). See 2011 Neb. Laws, L.B. 100, § 2.

29 State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
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[11] Instead, Hood argues that evidence of his diminished 

mental capacity could have rebutted evidence that he acted 

with criminal intent.30 We have held that separate and apart 

from an insanity defense, a defendant may, with appropriate 

evidence, try to defeat the charge filed against him or her by 

proving that at the time the offense occurred, the defendant 

lacked the ability to intend the voluntary and probable consequences of his or her act.31 In State v. Vosler,

32 we noted that 

“although there is but one type of insanity which will support 

a finding of not guilty or not responsible by reason of insanity, 

there are a variety of mental conditions which bear upon the 

ability to form a specific intent.”

However, we agree with the State that the record affirmatively shows that Hood’s mental capacity was not a factor 

in the collision. For example, during the hearing on Hood’s 

motion to suppress, Ray testified that he evaluates a patient’s 

competency prior to conducting a blood draw, that he advised 

Hood of his rights and found Hood to be capable of consenting, and that Hood consented to a blood draw. In addition, Ray 

testified that Hood asked for a telephone to call his mother and 

told his mother that he “needed a lot of money and he was in 

trouble.” Further, Hood was able to provide his medical history 

to Ray and was able to inform a State Patrol trooper that he 

believed he had suffered a broken ankle.

The record related to Hood’s sentencing also demonstrates 

that Hood did not have a viable diminished capacity defense. 

The district court reviewed Hood’s presentence investigation 

report and considered Hood’s “mentality” and whether he 

“contemplated causing serious harm” in determining Hood’s 

sentence. The court reviewed evidence of Hood’s difficult 

upbringing and family history, problems with substance abuse 

30 See State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984).

31 State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999); Vosler, supra

note 30.

32 Vosler, supra note 30, 216 Neb. at 468, 345 N.W.2d at 811.
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from an early age, criminal record, and unsuccessful participation in state programs. The court did not conclude that Hood 

lacked the ability to distinguish between right and wrong. 

Rather, the court described Hood as a “recidivis[t] drunk 

driver” and stated:

[Y]ou absolutely meant to get in the car. You absolutely 

meant to do that and once you made that decision, once 

that decision was made . . . it was game on for every other 

driver on the road and [the victims] didn’t ask to play. 

They were involuntary actors in your decision to drink 

and to drive. It was your choice. . . . You choose to drink. 

You choose to drive and these poor people happened to be 

in the wrong place at the wrong time.

We also note that pursuant to Neb. Rev. Stat. § 29-1823 

(Reissue 2016), the court had the authority to determine 

Hood’s competency. The court had the case from 2014 to 

2017, and the record does not show that the State, Hood, or 

Hood’s counsel requested a competency evaluation. The most 

likely explanation as to why Hood’s mental capacity was not 

explored is because a diminished capacity defense would have 

lacked merit.

We find the record refutes the allegations that the performance of trial counsel was deficient. The testimony of Ray and 

the unchallenged comments of the court at sentencing provide 

that counsel’s decision not to pursue the mental capacity issue 

was not inconsistent with the conduct of a lawyer with ordinary training and skill. There is no basis from the record to 

conclude that Hood’s mental capacity at the time of the accident would have negated his criminal liability.

Furthermore, we find that Hood’s generalized allegations 

of deficient performance are insufficient. Hood alleged in a 

conclusory fashion that raising a diminished capacity defense 

“would have favorably impacted his criminal liability.”33 But 

Hood did not allege that he actually lacked capacity for a 

33 Brief for appellant at 14.
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specific reason. Rather, Hood’s claim is that based on his 

behavior, he might have been suffering from psychosis, schizophrenia, or bipolar disorder. Absent specific allegations, Hood’s 

ineffective assistance of counsel claim effectively becomes a 

discovery motion to determine whether evidence favorable to a 

defendant’s position actually exists.34

We conclude that the record refutes Hood’s claim and that 

his claim is insufficiently raised. Therefore, Hood has failed 

to state a claim that the performance of his trial counsel was 

deficient as a matter of law. This assignment of error is without merit.

Evidence of Driver’s Refusal to Warrantless

Blood Draw Is Admissible in

DUI Prosecution

Hood’s second assignment of error argues that Birchfield

categorically prohibits the use of evidence in a DUI prosecution that a defendant refused to consent to a warrantless blood 

draw.35 Hood argues that even though the crash in this case 

occurred years before Birchfield, Hood’s trial occurred after 

Birchfield became law, and that as a result, the jury should not 

have been permitted to consider evidence that Hood refused 

to submit to Abbott’s request for a blood test. Hood argues 

the jury should not have been allowed to “infer guilt in such 

ambiguous circumstances, particularly involving the exercise 

of a constitutional right.”36

Hood’s argument runs headlong into § 60-6,197(6), which 

states, “[r]efusal to submit to a chemical blood, breath, or 

urine test or tests pursuant to this section shall be admissible 

evidence in any action for a violation of section 60-6,196 . . .” 

The district court acknowledged that in Rask, we found that 

§ 60-6,197(6) “is a broad rule, without exception—it states 

34 See, Foster, supra note 25; State v. Abdullah, 289 Neb. 123, 853 N.W.2d 

858 (2014).

35 See Birchfield, supra note 1.

36 See State v. Gauthier, 174 Wash. App. 257, 265, 298 P.2d 126, 131 (2013).
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only that a refusal is admissible to prosecute a DUI”37 and 

held that under § 60-6,197(6), even uninformed refusals to 

submit to a chemical test are admissible for the purpose of 

proving DUI charges. We determined that a defendant’s refusal 

to submit to a chemical test is evidence of the circumstances 

surrounding a DUI charge and said that a refusal showed the 

“‘defendant’s conduct, demeanor, statements, attitudes, and 

relation toward the crime.’”38

Hood’s brief does not address § 60-6,197(6) and does not 

assert that § 60-6,197(6) is unconstitutional, and the State 

does not argue that we should interpret Hood’s argument as 

a constitutional challenge to the statute. The record further 

indicates that Hood has not preserved an argument regarding the constitutionality of § 60-6,197(6), either facially or as 

applied to Hood, because Hood did not file a notice of constitutional question pursuant to Neb. Ct. R. App. P. § 2-109(E) 

(rev. 2014).

Because Hood does not question the constitutionality of 

§ 60-6,197(6), in addressing his assignment of error, we find 

it appropriate to reiterate our decision in Rask in light of the 

U.S. Supreme Court’s decision in Birchfield. We did not rely 

upon Birchfield in our decision in Rask, because the case was 

briefed and argued prior to Birchfield. We take this opportunity to discuss the Birchfield decision and its implications on 

Nebraska law in the context of the evidentiary concern raised 

by Hood.

In State v. McCumber,

39 we considered the extent to which 

portions of § 60-6,197 have been invalidated by the U.S. 

Supreme Court’s decision in Birchfield. Unlike Hood’s case, 

McCumber involved a conviction on a charge of refusing to 

submit to a blood test. We held that the defendant’s conviction 

37 Rask, supra note 2, 294 Neb. at 620, 883 N.W.2d at 695.

38 Id. at 621, 883 N.W.2d at 696 (quoting State v. Meints, 189 Neb. 264, 202 

N.W.2d 202 (1972)).

39 State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).
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for refusal under § 60-6,197 was unconstitutional as applied 

to him based on Birchfield, because the only basis offered by 

the State to demand a blood test from the defendant was that 

he could be searched incident to a lawful arrest for drunk driving or that he had consented to a blood test under Nebraska’s 

implied consent laws.40 However, we held that § 60-6,197 is 

facially constitutional, because there are circumstances under 

which a conviction for refusal under § 60-6,197 would be valid 

even after Birchfield. We explained that a charge for refusal 

to submit to a chemical test could be valid if law enforcement 

has obtained a warrant to conduct a blood draw or if exigent 

circumstances exist such that there is no time to secure a warrant.41 Therefore, Birchfield limited the legal force and effect 

of § 60-6,197 only to the extent that warrantless blood draws 

and prosecutions of a refusal to submit to a warrantless blood 

draw cannot be justified as part of a search incident to arrest or 

based on implied consent.

In State v. Hoerle,

42 we examined in detail Birchfield

and its implications on Nebraska law. We explained that 

Birchfield did not categorically prohibit a warrantless blood 

draw based on a driver’s actual consent and that a court 

must consider the totality of the circumstances to determine 

whether a driver’s consent to a blood test was freely and 

voluntarily given.43 We acknowledged that warrantless blood 

draws based on a search incident to arrest or implied consent 

could not be constitutionally justified, but concluded that the 

good faith exception applies to pre-Birchfield blood draws of 

this nature.44

40 Id.

41 Id.

42 State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017), cert. denied ___ 

U.S. ___, 138 S. Ct. 1986, 201 L. Ed. 2d 248 (2018).

43 Id.

44 Id. See, also, State v. Nielsen, ante p. 88, ___ N.W.2d ___ (2018); State v. 

Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).
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Though we have not yet specifically addressed the propriety 

of admitting evidence of a driver’s refusal in a criminal DUI 

proceeding post-Birchfield, the Birchfield Court shed light on 

the issue when it stated that “[o]ur prior opinions have referred 

approvingly to the general concept of implied-consent laws 

that impose civil penalties and evidentiary consequences on 

motorists who refuse to comply. . . . Petitioners do not question the constitutionality of those laws, and nothing we say 

here should be read to cast doubt on them.” 45 As a result, 

we do not read the Birchfield Court’s decision as placing 

restrictions on the use of evidence of a driver’s refusal in a 

DUI proceeding.

The Birchfield Court was primarily concerned with the 

heightened privacy interests implicated by blood tests, which 

are more physically invasive than breath tests and provide 

law enforcement a sample that can be preserved and processed to provide more information about an individual than is 

provided by a breath test.46 After recognizing the substantial 

privacy concerns presented by blood draws and concluding the search incident to arrest exception does not apply 

to warrantless blood tests, the Court considered whether 

implied consent statutes qualified as a consent exception to 

the requirement for a warrant. The Court stated that “[t]here 

must be a limit to the consequences to which motorists may 

be deemed to have consented by virtue of a decision to drive 

on public roads” 47 and concluded that “motorists cannot be 

deemed to have consented to submit to a blood test on pain 

of committing a criminal offense.” 48 The Court did not go 

on to conclude, as Hood argues, that the Fourth Amendment 

prohibits the use of evidence of a defendant’s refusal in a 

45 Birchfield, supra note 1, 136 S. Ct. at 2185.

46 See id.

47 Id., 136 S. Ct. at 2185.

48 Id., 136 S. Ct. at 2186.
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DUI criminal proceeding, particularly where the defendant 

has not been charged with the crime of refusal and no blood 

draw has taken place.

Several state courts have been confronted with the very 

issue raised by Hood and have acknowledged that the Fourth 

Amendment does not bar the admission of evidence of refusal 

to submit to a warrantless blood draw.49 For example, the 

Supreme Court of Vermont reasoned that criminalizing refusal 

poses qualitatively different Fourth Amendment concerns than 

merely allowing evidence of the refusal at a criminal DUI 

trial.50 Even though the State is permitted to use a defendant’s refusal as circumstantial evidence of guilt, a defendant has a full opportunity to explain the basis for refusal to 

the jury.

In this case, the State argued that Hood refused because 

“[h]e knows he’s in trouble.” Based on the record, Hood could 

have rebutted this argument by explaining that he refused 

because he is a recovering heroin addict and “doesn’t do 

needles” and that he later offered to provide Abbott a blood 

sample but Abbott declined.

[12] In summary, Birchfield itself clarified that the propriety of evidentiary consequences for a driver’s refusal to 

submit to a blood draw should not be questioned. If Hood’s 

position were the law, no drunk driver would ever submit to 

a blood test. Therefore, consistent with our decision in Rask, 

we join the courts which have concluded that evidence of 

a driver’s refusal to submit to a warrantless blood draw is 

admissible in a DUI prosecution. Hood’s assignment of error 

is without merit.

49 See, State v. Rajda, Nos. 2017-051, 2017-126, 2018 WL 3494646 (Vt. 

July 20, 2018); MacMaster v. State, 344 Ga. App. 222, 809 S.E.2d 478 

(2018); State v. Storey, 2018 NMCA 009, 410 P.3d 256 (2017); Fitzgerald 

v. People, 394 P.3d 671 (Colo. 2017), cert. denied ___ U.S. ___, 138 S. Ct. 

237, 199 L. Ed. 2d 122.

50 See Rajda, supra note 49.
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Court’s Error in Admitting Death

Certificate Without Supporting

Testimony Was Harmless

In his third assignment of error, Hood claims the district 

court erred in admitting a death certificate, without a supporting witness, in a case wherein the time, place, and manner of 

death are necessary elements of the charged offenses. Hood 

argues that statements made in the death certificate were testimonial in nature and that therefore, he had a right to confront 

the author of the statements.

During direct examination of Ross, the State detoured from 

questioning Ross to offer the victim’s death certificate into evidence. The following exchange took place:

[State]: Your Honor, the State would also see[k] to 

offer the Certificate of Death of [the victim]. It is authenticated. It does have a seal here.

THE COURT: [Defense counsel?]

[Defense counsel]: Judge, objection, confrontation.

THE COURT: The objection is overruled. The court 

will receive Exhibit 49.

The Sixth Amendment to the U.S. Constitution provides 

that “[i]n all criminal prosecutions, the accused shall enjoy the 

right . . . to be confronted with the witnesses against him . . . .” 

Hood argues the Sixth Amendment required exclusion of the 

death certificate based on the U.S. Supreme Court’s decision 

in Crawford v. Washington,

51 which generally held that an outof-court testimonial statement of an unavailable declarant is 

not admissible at a criminal trial unless a defendant had a prior 

opportunity to cross-examine the declarant. Hood argues that 

statements made by the Garden County Attorney in the victim’s 

death certificate were testimonial in nature and that the court 

had not found the Garden County Attorney to be unavailable to 

provide testimony.

51 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 

(2004).
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[13] Nebraska has historically not followed the rule which 

permits a death certificate to be received in evidence as presumptive evidence of the facts stated therein.52 This court has 

held, even in the civil context where the confrontation clause 

is not at issue, that a death certificate, standing alone, is not 

competent evidence when offered as proof of the cause of 

death in a controversy where the cause of death is a material issue.53

In Vanderheiden v. State,

54 we extended this rule to the 

criminal context based on a Confrontation Clause rationale. 

We found that “death certificates are made ex parte without 

a hearing and without the right of cross-examination” and 

found that the certificate was not admissible to prove the cause 

of death.55

In Skinner v. Jensen,

56 we applied the rule from Vanderheiden

to a habeas corpus proceeding in which the relator challenged 

the sufficiency of evidence produced at a preliminary hearing. The relator was being held on a charge of manslaughter, 

and the only evidence to establish the death or cause of death 

of the victim was a death certificate. We found that the death 

certificate was not competent evidence and that therefore, 

there was insufficient evidence to sustain a finding that manslaughter had been committed, and we noted that the State 

could file a new complaint and present additional evidence at 

a future hearing.57

Based on our prior line of cases, we determine that the trial 

court erred in admitting the victim’s death certificate without 

52 See McNaught v. New York Life Ins. Co., 145 Neb. 694, 18 N.W.2d 56 

(1945).

53 McNaught, supra note 52; Omaha & C. B. Street R. Co. v. Johnson, 109 

Neb. 526, 191 N.W. 691 (1922).

54 Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761 (1953).

55 Id. at 744, 57 N.W.2d at 767.

56 Skinner v. Jensen, 178 Neb. 733, 135 N.W.2d 134 (1965).

57 Id.
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supporting testimony from the author, regardless of whether 

the statements made in the death certificate were testimonial in 

nature or whether the Confrontation Clause required exclusion 

of the evidence. We determine, however, the court’s error was 

harmless beyond a reasonable doubt, because the time, place, 

and cause of the victim’s death were not contested issues in 

this case; the death certificate was cumulative of other evidence on these issues; the jury’s guilty verdict was surely unattributable to the court’s error; and there was properly admitted 

evidence to support the jury’s finding.

[14,15] Our harmless error jurisprudence recognizes that 

not all trial errors, even those of constitutional magnitude, 

entitle a criminal defendant to the reversal of an adverse trial 

result.58 It is only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt, which 

requires a reversal.59 When determining whether an alleged 

error is so prejudicial as to justify reversal, courts generally 

consider whether the error, in light of the totality of the record, 

influenced the outcome of the case.60

There was no dispute that one of the victims in this case 

was deceased. Nor was there a dispute about the time and 

place of the victim’s death. Ross testified that when he arrived 

on the scene, a man yelled at him to get over to the victim’s 

vehicle and said he thought “the driver was gone but the passenger was still alive and breathing.” Ross went to the victim’s 

vehicle and found that the driver had no pulse, so he focused 

on the passenger. Ross testified that he told Ray that officers 

had “one critically injured on their way to the hospital, one 

fatality and one with a broken ankle.” A chief deputy sheriff, 

who was also at the scene of the collision, testified that after 

leaving the scene, officers went to the funeral home with the 

deceased victim.

58 State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).

59 Id.

60 Id.
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There was also no dispute about the cause of the victim’s 

death. Hood’s vehicle collided with the front driver’s side 

of the deceased victim’s vehicle. Ross testified that after the 

accident, the deceased victim’s body was “in a state of brokenness.” Defense counsel did not focus on whether a death 

occurred based on the collision, but on whether the collision 

was the result of Hood’s intoxication or whether Hood accidentally lost control of his vehicle due to distracted driving.

Although the State offered the death certificate into evidence, the State did not expressly rely on the death certificate to establish a fact in issue. Hood correctly described the 

admission of the death certificate as a “detour[]”61 from the 

other evidence presented. The State never referred back to the 

death certificate after it was admitted. We agree with the State 

that the death certificate was cumulative of other evidence of 

the time, place, and cause of the deceased victim’s death. We 

therefore conclude that the court’s admission of the death certificate was harmless beyond a reasonable doubt. This assignment of error is without merit.

CONCLUSION

We conclude that Hood failed to state an ineffective assistance of counsel claim as a matter of law. Further, we conclude 

that evidence of a driver’s refusal to submit to a warrantless 

blood draw is admissible in a DUI prosecution. Lastly, we conclude that the trial court’s error in admitting the victim’s death 

certificate without supporting testimony was harmless beyond 

a reasonable doubt. We therefore affirm Hood’s convictions 

and sentences.

Affirmed.

Freudenberg, J., not participating.

61 Brief for appellant at 9.