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Wednesday, Oct. 22, 2014

Driver guilty of motor vehicle homicide

Friday, March 12, 2010

(Photo)
Herchel Huff Sr. of Holbrook leaves the Dawson County courtroom Thursday afternoon. Huff is charged with motor vehicle homicide (which includes the charge of driving while intoxicated), tampering with a witness and refusal to submit to a chemical test, in the death of Kasey Jo Warner of Arapahoe on Oct. 3, 2007.
(Connie Jo Discoe/McCook Daily Gazette)
LEXINGTON -- A 12-person jury deliberated three hours and 10 minutes before returning with a verdict of guilty of motor vehicle homicide for Herchel H. Huff Sr., and Furnas County District Court Judge James Doyle IV found him guilty of tampering with a witness and refusal to submit to a chemical test.

Huff will be sentenced at 9 a.m. May 5 in Beaver City.

The jury had been given instructions to find Herchel H. Huff Sr. guilty of motorvehicle homicide because of driving while intoxicated, or guilty of manslaughter while engaging in an unlawful act: speeding; or not guilty.

Motor vehicle homicide is a Class II felony with a penalty of up to 50 years in prison. Tampering with a witness is a Class IV felony with a penalty of up to five years in prison, a $10,000 fine or both. Refusing to submit to a chemical test is a Class IIIA felony with a penalty of up to five years in prison, a $10,000 fine or both.

Huff cried on the stand Thursday afternoon, recalling the seconds before his life changed forever and the life of 28-year-old Kasey Jo Warner ended.

Herchel H. Huff Sr. wiped his eyes, saying he called 911 to get help for "the little girl" on the accident scene, a tot he described wearing a pink dress and a pink helmet, and covered with stickers.

Three-year-old Gentry Warner had been riding a kid-sized four-wheeler beside her mother who jogged east of their home on River Road near Arapahoe on Oct. 3, 2007, a warm autumn Wednesday evening.

Huff told Furnas County District Court Judge James Doyle IV, attorneys and the jury that he was enjoying the day, driving with the T-tops off the roof of his blue Camaro.

Dan Warner told those in the courtroom in Lexington that his wife enjoyed working out, and she exercised or ran outside three or four nights a week. She almost always ran to the east, Dan said, a sad smile on his face, explaining that there's a feedlot to the west of their home. They had set a speed governor on Gentry's little red four-wheeler to match Kasey's jogging pace, so that she could accompany her mother on her runs.

Dan testified that Kasey said she "really wanted to stay and watch" a Nebraska-Kansas State volleyball game on television because she had coached against a player on each team, but Gentry wanted to run. So Dan took Gentry's little sister, Berkley, with him to check on a cow about to calve, and Kasey and Gentry went out the east drive of the family's farmstead.

That would be the last time Dan Warner would see his wife alive.

Herchel Huff testified that he rounded a curve and drove up a hill on River Road -- admitting that he was driving too fast. "Kasey was on the north side of the road and bent over," he said. "She stood up, and Kasey and I saw each other at the same time."

"She grabbed her daughter and ran toward the north ditch," Huff said. "The car slid and we hit her."

Huff testified that the car came to a rest in the field. "I tried to get out of the car, but the door was crimped," he said, and it came shut against his leg. He got out of the car, the little girl was screaming, Huff said, and he got on the phone and called 911.

"What were you feeling, Herchel?" Huff's attorney, Charles Brewster, asked.

Huff choked on the words. "The woman wasn't moving, and the little girl was screaming. I was in shock. I called 911 and I said I thought someone was deceased and the little girl needed help."

Huff said he checked on Kasey Jo, who wasn't alive, he said. Huff said he took off his shirt and covered Kasey's body with it. Huff said he took off Gentry's little pink dress, pulled stickers and placed the dress and helmet on the side of the road. "I picked her (back) up," he said.

Huff testified that he told Ryan Markwartt, his passenger and drinking buddy during an afternoon of bar-hopping in Oxford, to run to get help. Huff said he told Ryan "to shut up ... quit worrying. I was driving. Go get help."

Huff said Ryan was worrying about getting in trouble. "I told him that trouble didn't matter. What mattered was going to get help."

Huff described Ryan as "pretty scared ... upset. You could probably describe us both as hysterical."

"I called 911 again," Huff said. "I told them to please hurry. The little girl was hurt."

Huff said he had gotten a bottle of water for the little girl, "because she had dirt in her mouth." He also used the bottled water to wash out his own mouth "because I had thrown up," Huff said.

Ryan and a man in a van arrived on the scene, Huff said, and he handed the little girl to the man.

Huff said that he walked to Furnas County Lee Lozo when Lozo arrived on the scene. "I told him I was driving, and he put me in handcuffs," Huff testified. Huff told Brewster that he waved off EMT's who inquired about whether he was hurt. Huff said he told them he was fine, but to please look at the little girl.

Dan Warner, with Berkley in her carseat, arrived on the scene, having followed the sound of sirens east of their home. Dan said that Shawn Pruitt -- the family friend who testified Wednesday that he had pulled into the Warner farmyard in his van to call 911 -- stopped him from running to his wife's body, urging him to go to Gentry.

Dan Warner went with his daughters in the ambulance to Cambridge Memorial Hospital.

Herchel Huff went with Deputy Vernon Levisay in a patrol car to the same hospital.

Brewster asked Huff if he remembered telling Dep. Levisay "I'm f----ed." Huff said, "I remember saying, 'I f---ing killed her'."

Huff told Brewster that at the hospital he had wanted to blow on a breath (analyzer) machine. "I didn't want to give blood," Huff said.

Brewster asked Huff if, after the accident, he told Ryan Markwartt that he should say that he (Markwartt) was driving. "No," Huff said. "Did you tell him you had to 'get your stories straight'?" "No," Huff said.

Huff admitted, "We were driving too fast." Brewster asked him if he was driving as fast as the accident reconstructionist figured -- 72-84 miles an hour. Huff replied, "Close." And added, "I admit that."

Huff said he wasn't driving fast because he was drunk. He was driving too fast, he said, "enjoying the day with the T-tops off."

Brewster asked Huff if he accepts responsibility for the accident. Huff answered, "I'm very sorry for what happened. I wanted to say I'm sorry the moment it happened." Brewster added, "But Mr. Calkins and I told you to keep your mouth shut."


Forensic pathologist Dr. Matthias Okoye of Lincoln testified that Kasey Jo Warner died of multiple severe blunt force trauma injuries to her head, trunk and extremities, injuries "consistent with a pedestrian struck by a moving motor vehicle, which ran over her and drug her."

Brewster asked Dr. Okoye if Kasey Jo Warner died instantaneously. "No," Dr. Okoye said. "There was no injury to the brain stem. She could have survived seconds, or minutes, but that is not instantaneously."


Brian Buxbaum, the Nebraska State Patrol accident reconstructionist, estimated that Huff was driving between 72 and 84 miles an hour when he applied his brakes and skidded 239 feet in 2 1/2 seconds, to the point of impact with Kasey Jo Warner.

Buxbaum told Guinan it is his opinion, "The collision would never have happened" if Huff had been driving the speed limit -- 50 miles an hour. "He would have stopped short," of hitting Kasey Jo Warner, Buxbaum testified.

Brewster questioned Buxbaum about the ability of a driver, in a low car, to see a small four-wheeler. "We don't know what Kasey Warner was doing the moment before Mr. Huff first saw her, do we? She could have ben leaning, helping her daughter," Brewster said. "We don't know where Mrs. Warner was prior to impact, do we"? Brewster asked, "Before reaction time can start, a driver has to see the hazard, right?"


Dr. Henry Nipper, PhD, director of clinical chemistry and toxicology at Creighton University, described to the courtroom a body's reaction to the ingestion of alcohol, and the symptoms and signs of increasing levels of alcohol.

Dr. Nipper explained to Guinan and the courtroom that he, during the previous 21⁄2 days of testimony, took notes regarding Huff's behavior on Oct. 3, 2007. Dr. Nipper's notes indicated, he said, that a witness described Huff as staggering, another said he was arguing on the phone, becoming agitated, putting on a "tough guy" act, becoming loud and aggressive, becoming talkative, boisterous and more agitated.

Dr. Nipper estimated the number of drinks that Huff consumed the afternoon of Oct. 3, 2007, at 11 to 12, and further calculated Huff's blood alcohol concentration at .15 at the time of the accident.

After repeated objections from Brewster, Dr. Nipper finally was allowed to say, "To me, the picture appears to be clear. Mr. Huff's ingestion of alcohol resulted in a blood alcohol concentration easily calculated, and his actions could be predicted to be impaired. The picture appears clear to me."

Brewster asked whether Dr. Nipper's calculations were based on the assumption that Ryan Markwartt was "telling the truth" about the afternoon of drinking in two bars in Oxford. "Yes," Dr. Nipper replied.


Dianna Wilhelms, assistant manager of and bartender at the Wagon Wheel Bar in Oxford, testified that Herchel Huff was happy the afternoon of Oct. 3, 2007, when he came into her bar. Huff told Wilhelms, she said, that he was trying to get back together with his wife. Huff went in and out of the bar while talking on the phone at least three times, Wilhelms said, at times being gone 20 to 30 minutes.

Wilhelms said she served Huff only two drinks, and that he drank only part of his second beer. The last time she saw Huff, she said, he did not appear to be intoxicated, Wilhelms said, and she got off work at 5 p.m.

Wilhelms said that Huff wasn't a regular at the bar, but came in two or three times a week during the six months before the accident, (although she said the year was 2006).

Wilhelms told Brewster that Huff usually drank Bud Light bottled beer, although he wanted and ordered "Jagerbombs" -- a liquor and energy drink mix -- that she did not carry. Yes, he would have had to have gone to another bar for Jagerbombs, Wilhelms told Brewster.

Wilhelms admitted to Brewster that she did not know where Huff went when he left her bar and was gone to 20-30 minutes, or exactly what time he came back. "He could have gone to another bar, yes," she said.

But, she said, Huff came back one time and said he had ordered flowers for his wife. "He was happy, excited," Wilhelms said.

Wilhelms told Brewster that she remembers the afternoon because of the accident that happened later. "I was told it was Herchel involved," she said. "It's a horrible thing to happen. Something that horrible happens, it sticks in your mind ... my mind anyway."


Huff testified that at one point during the afternoon of Oct. 3, 2007, he walked to the flower shop in downtown Oxford to order two dozen roses for his wife. He said it took him one to a 1 1/2 hours because he wanted to write a letter that the flower shop would fax with the flowers. "I had to sit down and write it," Huff said, explaining that he wanted to be very careful and wanted the note to be "very from the heart."

He said he stepped back into the bar to continue writing the note because sitting on the bench outside the flower shop was too warm.


Huff told Guinan that he does not remember Dep. Levisay telling him that refusal to submit to a chemical test can result in another charge. "You were told multiple times," Guinan said. "I don't remember," Huff said. "I don't remember that. I don't recall that." Huff told Guinan, "You can ask me 15 times, I don't remember."

Guinan asked Huff, "You refused to take a test, and you say you'd only had four drinks. Four drinks." And probably finished drinking about 4:30 p.m., Guinan said. The test was requested at what time, Guinan asked. "I don't know. I don't remember," Huff said. Huff said "I don't recall" the refusal test, shown to him by Guinan.

Huff told Brewster, "I was underneath a lot of stress. The little girl was screaming next door. I wasn't thinking about no test. At that moment, I was think about that lady dying."

He concluded, "Anyone who knows me knows I'm afraid of needles."

Guinan recalled Dep. Levisay to the stand. Levisay testified that Huff did not ask him to do a breath test instead of a needle blood draw.


Judge Doyle overruled Brewster's motion to dismiss on the grounds that the state had failed to prove its charge of motor vehicle homicide, including driving while intoxicated.

Doyle also overruled and denied Brewster's motion to discharge and dismiss, Brewster contending that Huff's constitutional right not to be charged twice for the same crime was being denied. Huff has pleaded guilty to manslaughter in the death of Warner.


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