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State v. Brouillette1/24/2003
I. NATURE OF CASE
David A. Brouillette was convicted in the district court for Lancaster County of two counts of manslaughter. Brouillette was sentenced to 1 to 2 years' imprisonment on the first count and 5 years' probation on the second count and was ordered to pay restitution on both counts. Brouillette appeals his convictions. We affirm.
II. STATEMENT OF FACTS
On the morning of October 23, 1999, on U.S. Highway 77 north of Lincoln, a vehicle driven by Brouillette collided head on with another vehicle, killing the driver and passenger in the other vehicle. Highway 77 is a divided four-lane highway. At the location of the accident, Highway 77 is composed of two lanes northbound and two lanes southbound separated by a grassy median. Brouillette was driving southbound in the westernmost northbound lane when the vehicles collided.
On the night before the accident, Brouillette had gone to a bar in Lincoln where he had had a "couple" of beers. Brouillette met Angela Richards at the bar, and when the bar closed at 1 a.m., Brouillette followed Richards to a party where he drank another beer. At approximately 3 or 3:30 a.m., Brouillette and Richards left the party and drove separately to Richards' home, which was located on the east side of Highway 77 north of Lincoln. Brouillette did not consume any alcohol at Richards' home, and he left her home sometime around 5:30 a.m. In order to leave Richards' home, located to the east side of Highway 77, and go south toward Lincoln, one needed to proceed west and cross over the two northbound lanes and the median before turning left to the south into the southbound lanes.
Laura Boone testified at trial that on the morning of October 23, 1999, she was driving in the southbound lanes of Highway 77 and observed a silver Grand Am driving south in the westernmost lane of the northbound lanes of the divided highway. The driver of the silver Grand Am was later identified as Brouillette. Boone observed a near miss between Brouillette's southbound vehicle and a northbound vehicle. Boone then witnessed a collision on the northbound portion of the divided highway between Brouillette's vehicle and a red Volkswagen. The driver of the red Volkswagen, Daniel Barrett, and the passenger, Jason Reese, were killed as a result of the collision.
Certain rescue workers who came to the scene of the accident testified at trial. A volunteer for the Raymond Fire Department testified that she heard Brouillette tell medical personnel that he had consumed four or five drinks on the previous evening. However, the volunteer did not detect the odor of alcohol on Brouillette's person. Stewart Danburg, a Lancaster County sheriff's deputy, testified that he engaged Brouillette in conversation regarding how the accident happened. Brouillette told Danburg that he did not realize that he was on a four-lane divided highway and instead thought that he was driving south in the correct lane of a two-lane highway. Danburg asked Brouillette if he had consumed any alcohol, and Brouillette responded that he had been drinking the prior evening but had not had anything to drink since midnight. Danburg did not notice the odor of alcohol on Brouillette and did not ask Brouillette to perform any field sobriety tests. Joseph Gehr, a Lancaster County sheriff's deputy who was trained in accident reconstruction, investigated the scene of the accident. Gehr testified at trial that as a result of his investigation, he determined that the silver Grand Am driven by Brouillette was southbound in the westernmost lane of the northbound lanes at the time of the collision.
Brouillette was taken by helicopter to a hospital in Lincoln. Derek Horalek, an
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