Hunter After Diaz: Nebraska Authorizes Cumulative Punishments in Successive Prosecutions When Later-Occurring Facts Complete the Greater Offense

Introduction

In State v. Lewis, 319 Neb. 847 (Neb. Sept. 12, 2025), the Nebraska Supreme Court confronted a recurring but legally intricate sequence: a defendant is convicted for driving under the influence causing serious bodily injury; months later, the victim dies from complications, and the State prosecutes the defendant for motor vehicle homicide while under the influence. The case presented three principal issues:

Whether a pathologist could offer cause-of-death testimony based solely on medical records he did not generate or observe first-hand.
Whether the State presented sufficient evidence that the defendant’s unlawful conduct proximately caused the victim’s later death.
Whether a second conviction and sentence for motor vehicle homicide/DUI, following an earlier conviction and sentence for DUI/serious bodily injury arising from the same crash, imposed impermissible multiple punishments under double jeopardy.

The court affirmed the conviction and sentence. Most significantly, it announced a clarifying rule of statewide importance: when a second prosecution is permitted under the Diaz exception (because a necessary fact—like the victim’s death—had not yet occurred at the time of the first prosecution), Missouri v. Hunter’s legislative-intent test governs the multiple punishments analysis even though the punishments arise from successive, not single, proceedings. Because the Legislature expressly authorized cumulative punishments for both DUI resulting in serious bodily injury and motor vehicle homicide/DUI, no double jeopardy violation occurred.

Summary of the Opinion

Expert admissibility: The pathologist’s cause-of-death opinion, based on a review of medical records from the crash through death, was admissible under Neb. Rev. Stat. § 27-703. Lack of personal knowledge affected weight, not admissibility. A general “foundation” objection did not preserve specific § 27-702 challenges on appeal.
Sufficiency of evidence & proximate cause: Viewing the record most favorably to the State, the expert’s opinion that the traumatic brain injury from the crash was the proximate cause of the conditions that led to death (sepsis, ischemic bowel, small bowel obstruction) sufficiently proved causation. The death certificate’s listing of immediate causes did not defeat the proximate cause chain.
Double jeopardy—multiple punishments: Even assuming DUI/serious bodily injury is a lesser-included offense of motor vehicle homicide/DUI under Blockburger, cumulative punishments are permitted where the Legislature clearly authorizes them. The court held that Hunter’s legislative-intent test applies in Diaz-type successive prosecutions. Because § 60-6,198(4) and § 28-306(4) both state the crimes are “separate and distinct” from other offenses arising out of the same acts, cumulative punishments were legislatively authorized; no multiple-punishments violation occurred.
Disposition: Conviction and sentence for motor vehicle homicide/DUI affirmed.

Factual and Procedural Background

On October 11, 2020, Maylesha S. Lewis crashed her vehicle while impaired, severely injuring passenger Thomas Martin. Lewis pleaded guilty to DUI resulting in serious bodily injury (§ 60-6,198) and received 30 months’ incarceration, 18 months’ post-release supervision, and a driver’s license revocation. At sentencing, Martin was in a persistent vegetative state. He died in June 2021.

In December 2021, the State charged Lewis with motor vehicle homicide/DUI (§ 28-306(1), (3)(b)). The district court sustained a plea in bar, treating the offenses as the same under Blockburger. In State v. Lewis, 313 Neb. 879 (2023) (“Lewis I”), the Nebraska Supreme Court reversed, applying Diaz v. United States to hold that a successive prosecution was permissible because Martin’s death—a necessary element of the later charge—had not occurred when Lewis was first prosecuted.

On remand, following a bench trial, the district court convicted Lewis of motor vehicle homicide/DUI. The State’s principal medical proof was a pathologist who reviewed Martin’s medical records and opined that the crash-caused traumatic brain injury proximately caused the complications culminating in death. The court imposed 48 months’ probation with a 3-year license revocation, ordered to run concurrently with any other sentence then being served. Lewis moved posttrial to vacate the conviction, arguing impermissible multiple punishments; the court denied the motions.

Analysis

Precedents and Authorities Cited

Blockburger v. United States, 284 U.S. 299 (1932): The “same-elements” test: two offenses are the same if each does not require proof of a fact the other does. Lewis argued DUI/serious bodily injury is a lesser-included offense of motor vehicle homicide/DUI.
Diaz v. United States, 223 U.S. 442 (1912): An exception permitting a second prosecution for a greater offense when a necessary fact (e.g., victim’s death) arose after the first prosecution. Applied in Lewis I to authorize the successive homicide prosecution.
Missouri v. Hunter, 459 U.S. 359 (1983): For multiple-punishments claims, the Double Jeopardy Clause only prevents a court from imposing greater punishment than the legislature intended. If the legislature clearly authorizes cumulative punishment, courts may impose it (Hunter’s language refers to “a single trial”).
Garrett v. United States, 471 U.S. 773 (1985): In a Diaz-type setting (continuing criminal enterprise completed after earlier conviction), the Court rejected both a successive-prosecution claim and a multiple-punishments claim, applying Hunter’s legislative-intent analysis to uphold cumulative punishments despite successive proceedings.
Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994): Observed in part that cumulative sanctions may be permissible if imposed in the same proceeding; its punitive/nonpunitive approach was later curtailed by Hudson v. United States, 522 U.S. 93 (1997). The Nebraska Supreme Court distinguished Kurth Ranch from Diaz/Garrett scenarios.
Nebraska cases on cumulative punishments:
- State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997): Use of a deadly weapon statute evidenced legislative intent to punish cumulatively both the underlying felony and the weapon offense.
- State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007): Reaffirmed legislative-intent control for cumulative punishments.
- State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996): Similar “single proceeding” phrasing noted; now clarified by Lewis in the Diaz context.
Nebraska evidentiary law on experts relying on records:
- § 27-702: Expert qualification and assistance to trier of fact.
- § 27-703: Expert may base opinion on facts/data reasonably relied upon in the field even if not admissible; lack of firsthand knowledge goes to weight, not admissibility.
- State v. Allen, 314 Neb. 663, 992 N.W.2d 712 (2023), and State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002): Pathologists may give cause-of-death opinions based on records prepared by others.
- Gittins v. Scholl, 258 Neb. 18, 601 N.W.2d 765 (1999); Bideaux, 219 Neb. 718 (1985): Distinguish general foundation objections from § 27-702 qualification challenges; specificity is required to preserve claims.
- Stukenholtz v. Brown, 267 Neb. 986, 679 N.W.2d 222 (2004): Insufficient foundation where the witness relied on specialties outside his competence without showing familiarity; contrasted with pathologist here.
Proximate cause standard: State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016): Proximate cause means causation plus a sufficient connection between the act and result.
Medical causation proof: Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999): Testimony in terms of mere “possibilities” that fails to distinguish among multiple potential causes cannot sustain a verdict; distinguished in Lewis because the expert tied all terminal conditions back to a single root cause—the crash-induced traumatic brain injury.
Nebraska double jeopardy alignment: State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020): Nebraska’s Double Jeopardy Clause is coextensive with the federal clause. State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015): multiple-punishments review is a question of law.
Comparative authority: People v. Harding, 443 Mich. 693, 506 N.W.2d 482 (1993): Applied Diaz and Hunter (via Garrett) to felony murder charged after later death; multiple punishments turned on legislative intent; remedy there focused on sentence credit, not vacatur.

Legal Reasoning

1) Admissibility of Expert Cause-of-Death Testimony

The defense objected on “foundation” grounds to the pathologist’s (Dr. Bowen’s) opinion that traumatic brain injury from the crash was the proximate cause of Martin’s death. On appeal, the court held:

A generic foundation objection did not preserve distinct § 27-702 arguments about expert qualification, relevance, assistance, or § 27-403 balancing. Specificity matters for preservation.
On the foundation actually asserted, § 27-703 permitted Dr. Bowen to base his opinion on medical records (ER, hospitalizations, rehab, hospice) that pathologists reasonably rely upon. Lack of firsthand involvement affected weight—not admissibility.
Consistent with Allen and Pruett, pathologists may offer cause-of-death opinions derived from records generated by other medical providers; the contrary Stukenholtz scenario involved reliance across specialties without demonstrated familiarity.

2) Sufficiency of Evidence and Proximate Cause

Applying the deferential sufficiency standard, the court held that Bowen’s testimony provided a direct causal chain:

Crash → severe traumatic brain injury (TBI) → prolonged medical complications (ventilation, feeding tube, readmissions, pneumonia, neurostorms, gastric paralysis) → sepsis, ischemic bowel, small bowel obstruction → death.
Thus the crash was both a cause-in-fact and the proximate cause: it had the requisite “sufficient connection” to the result. Irish supplies the proximate cause framework.
The death certificate’s listing of immediate causes (sepsis/ischemic bowel/SBO) did not contradict proximate causation; Bowen testified those were terminal manifestations linked to the TBI. Even if in tension, credibility/weight determinations are for the factfinder and are not reweighed on appeal.
Unlike Zedek’s “mere possibility” testimony, Bowen offered a definitive opinion tying all intermediate conditions to the crash-induced TBI as the proximate cause.

3) Double Jeopardy—Multiple Punishments in a Diaz Successive-Prosecution Setting

The court’s principal doctrinal development lies here. The defense argued that even if Diaz permits the second prosecution, the second punishment is unconstitutional because the two offenses are the “same” under Blockburger. The court reasoned:

Step one: Diaz allows the second prosecution. Lewis I already held the homicide count could not have been brought earlier because death had not yet occurred; Diaz permits such sequential prosecutions.
Step two: Hunter’s test governs multiple punishments. Although Hunter frequently speaks of cumulative punishments “in a single trial,” Garrett demonstrates that in Diaz-type cases the multiple-punishments inquiry still turns on legislative intent, even when punishments arise from successive prosecutions.
Legislative intent in Nebraska is clear. Both § 60-6,198(4) (DUI/serious bodily injury) and § 28-306(4) (motor vehicle homicide) declare that “[t]he crime punishable under this section shall be treated as a separate and distinct offense from any other offense arising out of acts alleged to have been committed while the person was in violation of this section.” This language mirrors the intent-resolving provision in McBride and supports cumulative punishments.
Result: Even assuming the offenses are the same under Blockburger, cumulative punishments are constitutional because the Legislature expressly authorized them. The fact that punishments were imposed in successive proceedings does not alter the Hunter analysis where Diaz permitted the second prosecution, as confirmed by Garrett.

The court also explained why references to “single proceeding” in Hunter and some Nebraska decisions do not bar applying Hunter here:

Ordinarily, successive prosecutions themselves are barred; thus “single proceeding” reflects practical reality, not a categorical limit on Hunter.
Kurth Ranch’s “single proceeding” observation involved a distinct tax-penalty framework later curtailed by Hudson and did not involve later-arising facts completing a greater offense. It does not displace Garrett’s approach in Diaz scenarios.

Finally, the court noted that, had there been a multiple-punishments problem, vacating the later homicide conviction would undermine Diaz’s purpose. As Harding observed, an appropriate remedy in some jurisdictions may be sentence credit rather than vacatur. The court did not decide a remedy because it found no constitutional violation; it did observe that the district court appeared to consider the earlier incarceration when imposing probation on the homicide count.

Impact and Implications

A. Double Jeopardy—Clarified Rule for Nebraska

State v. Lewis establishes a clear, forward-looking principle for Nebraska:

When a second prosecution is permissible under Diaz because a necessary element arises later (e.g., death following serious bodily injury), a multiple-punishments challenge turns on legislative intent under Hunter, notwithstanding that the punishments stem from successive proceedings.
Where the Legislature has spoken—via “separate and distinct offense” clauses in § 60-6,198(4) and § 28-306(4)—cumulative punishments for DUI/serious bodily injury and motor vehicle homicide/DUI are constitutional.

This significantly affects charging and sentencing in cases where victims later die from injuries:

Prosecutors may proceed first on serious-injury charges and later on homicide charges without foreclosing a second conviction or punishment, so long as Diaz applies and the Legislature has authorized cumulative punishments.
Defense counsel should assess whether the implicated statutes contain clear statements authorizing cumulative punishments; where such statements are absent or ambiguous, a Hunter-based challenge may remain viable.

B. Evidentiary Practice—Expert Opinions Based on Records

Pathologists and similar medical experts may opine on causation based on comprehensive record reviews under § 27-703. The absence of personal treatment or an autopsy is not automatically dispositive of admissibility.
Objection preservation is critical: to challenge expert qualifications, reliability, or Rule 403 concerns, counsel must specifically invoke § 27-702 or § 27-403 rather than lodging a generic “foundation” objection.

C. Proximate Cause in Motor Vehicle Homicide

Proximate cause encompasses both cause-in-fact and a sufficient nexus to the result. The State can establish it with expert testimony linking the chain of medical complications to the initial traumatic injury.
Death certificates identifying immediate physiological causes do not negate legal causation where evidence shows those are sequelae of the original injury. Courts will not reweigh testimony on appeal.

D. Potential Remedies (Left Open)

The court flagged, but did not resolve, remedial mechanics if cumulative punishments were impermissible where Diaz allows a second prosecution. Some courts, like Michigan in Harding, have used sentence credit rather than vacating the later conviction, to avoid nullifying the Diaz exception. Nebraska practitioners should be prepared to brief remedial options if a future case presents the issue without clear legislative authorization for cumulative punishment.

Complex Concepts Simplified

Blockburger “same-elements” test: Two offenses are the same if neither requires proof of a fact the other does not; a lesser-included offense has no element the greater offense lacks.
Diaz exception: Allows a later prosecution for a greater offense if a required fact (like death) occurred after the first prosecution; the defendant was not previously “in jeopardy” for the greater offense because it did not yet exist.
Hunter legislative-intent test: For multiple punishments, the question is what the Legislature intended. If the Legislature clearly authorizes cumulative punishments, imposing them does not violate double jeopardy—even if the offenses are the same under Blockburger.
Garrett’s synthesis: In a Diaz scenario, courts may both allow the second prosecution and uphold cumulative punishments if legislative intent supports them, notwithstanding that the punishments arise from successive proceedings.
Proximate cause: Not merely “did X cause Y,” but “did X cause Y with a sufficiently close connection,” i.e., without breaking causal links or unforeseeable superseding causes.
Expert evidence under § 27-703: Experts may rely on records and data commonly used in their field; they need not have personal knowledge. Objections should target qualification, methodology, or relevance specifically to preserve issues.

Key Takeaways

New Nebraska rule: In Diaz-eligible successive prosecutions, Hunter’s legislative-intent analysis governs multiple-punishments claims. If the Legislature authorizes cumulative punishments, they are permissible even across successive cases.
Nebraska’s DUI/serious bodily injury (§ 60-6,198) and motor vehicle homicide/DUI (§ 28-306) statutes expressly permit cumulative punishments via “separate and distinct offense” clauses.
Cause-of-death opinions based on medical records are admissible under § 27-703; lack of personal knowledge impacts weight, not admissibility. Specific § 27-702 objections are required to preserve admissibility challenges.
Proximate cause in motor vehicle homicide can be proven by expert testimony connecting the initial trauma to later complications and death; contrary notations on a death certificate do not necessarily break legal causation.

Conclusion

State v. Lewis is a consequential decision on two fronts. First, it cements in Nebraska the admissibility and sufficiency of medical-expert causation opinions grounded in comprehensive record review in delayed-death prosecutions. Second, and more broadly, it clarifies double jeopardy doctrine at the intersection of Diaz and Hunter: when a greater offense is completed only after a first prosecution, courts will still honor clear legislative choices to impose cumulative punishments, even though those punishments are imposed in successive proceedings. Because Nebraska’s DUI injury and motor vehicle homicide statutes expressly declare themselves “separate and distinct” offenses, the court properly affirmed cumulative punishments here. Practitioners should internalize both the evidentiary lessons on expert testimony and the strategic implications for charging, plea negotiations, and sentencing in cases where a victim’s death occurs months after an initial DUI-related injury.