Sentencing May 5 for driver in fatal pedestrian accident

Monday, March 15, 2010

LEXINGTON -- The courtroom seemed to hold its breath as Dawson County district court clerk Sherry Warner read the verdict form handed to her by District Judge James Doyle IV at 2:30 p.m., Friday.

Teary-eyed women held hands. Tough men -- law enforcement officers many of them -- leaned forward.

"Guilty," Warner said.

A sharp exhale ... a restrained cheer quickly muffled.

A release, most likely for both sides of the argument.


After 21⁄2 days of testimony, a jury of 12 found Herchel Harold Huff Sr. of Holbrook guilty of one count of motor vehicle homicide in the death of Kasey Jo Warner of Arapahoe, the young wife and mother, volleyball coach and teacher struck down and killed 21⁄2 years ago as Huff sped along country roads after an afternoon of drinking.

Judge Doyle pronounced Huff guilty of tampering with a witness and refusal to submit to a chemical test.

Motor vehicle homicide is a Class II felony punishable by 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.

Doyle scheduled a sentencing hearing for 9 a.m., Wednesday, May 5, in the Furnas County courthouse in Beaver City, to establish whether to consider Huff's prior DWI offenses along with the conviction of motor vehicle homicide, and to sentence Mr. Huff.

Doyle ordered a pre-sentence investigation by probation officers.


Nebraska Attorney General Jon Bruning said Friday, following the verdict, "Mr. Huff chose to drink and drive. Now he will have to pay the price for his terrible decision."


Following closing statements by prosecutor Mike Guinan, of the attorney general's office, and defense attorney Richard Calkins and instructions from Judge Doyle Friday morning, the case went to the jury, at 11:05 a.m.

Doyle instructed the jury to find Huff guilty of motor vehicle homicide as the result of driving while intoxicated; or guilty of manslaughter while engaging in an unlawful act, that of speeding; or not guilty.

Manslaughter is a Class III felony with a penalty of up to 20 years in prison, a $25,000 fine or both.


Guinan told the jury, "Alcohol put Mr. Huff on that back road," the country road route that Huff took from bars in Oxford toward his home in Holbrook on that warm, sunny Wednesday evening Oct. 3, 2007.

"What don't you find on River Road?" Guinan asked. "Police." Guinan said the state contends that Huff took back roads, rather than the highway, to avoid being stopped for drinking and driving after spending the afternoon drinking with a friend. Guinan said that responses impaired by the excessive drinking directly caused the death of Mrs. Warner.

Guinan said that Huff "fixated" on Kasey as she jogged alongside her 3-year-old daughter riding on a kid-sized four-wheeler on River Road, the graveled country road southwest of Arapahoe.

"He fixates on her and slides right at her and a (power) pole," Guinan said. "Why does he do that? Because he's drunk."

Why doesn't he bail out -- steer his speeding car into a field before rounding the curve and impacting with Kasey Jo? Why doesn't he steer straight and go into the far ditch? "Because his responses are inappropriate. Because he's drunk." Guinan said.

Guinan defended his first witness, Ryan Markwartt, who couldn't come up with an exact number of drinks that Huff consumed on that afternoon. "There was no reason (at that time) to commit to memory" how many drinks Huff was having, but, Guinan said, Ryan testifies, "I Know he was drinking as much as, if not more than, me."

Markwartt's blood alcohol concentration about 11⁄2 hours after the accident that happened about 7-7:15 p.m was .13, Guinan said.

Guinan said that Huff's first thoughts after the accident were to tell Markwartt that he (Markwartt) had to take the blame for the accident, that Markwartt had to say he was driving. Witnesses described Huff talking "sternly" to Markwartt, as a parent talks to a misbehaving child, Guinan said.

Guinan said that, unless state's witness Shawn Pruitt "is a bold-faced liar," Huff was lying on the stand about taking care of little Gentry Warner while Markwartt ran for help. Pruitt testified Wednesday that he and his son picked Gentry up on River Road west of the accident, as they drove from the Warner home toward the accident, after they called 911 from a phone at the Warners' and Markwartt rode back to the scene with then.

Guinan said, emphatically, "Mr. Huff sat in that car as that child walked by her dead mother and down the road."

Guinan said that three trained, sworn law enforcement officers testified about a "strong" and "obvious" odor of alcohol on Huff. If Huff had had only four drinks during the afternoon as he claimed, that amount of alcohol would have been out of his system by the time of the accident, about 7:15 p.m., Guinan said. Even another 11⁄2 hours later, after Huff refused to have a blood alcohol test done, Deputy Rupp testified that Huff smelled like alcohol.


Huff's attorney, Richard Calkins, told jury members that everyone agrees the accident is a tragedy, but he encouraged them not to let sympathy for the family enter into their decision-making process.

Calkins said that Huff chose to testify even though he did not have to. "He answered questions from both parties," Calkins said.

Calkins said that even in his own testimony, Markwartt could not come up with an exact number of drinks that Huff consumed, so he, Calkins, questioned where Dr. Henry Nipper, the state's expert witness, came up with the number of 11-12 to use in his calculations of Huff's blood alcohol concentration. Calkins questioned whether the jury could believe Markwartt, that he under-estimated the number of drinks he himself had and included in a written statement -- whether he was "a credible witness."

"The only independent witness -- and she's not mentioned in Mr. Guinan's closing statement -- is Dianna Wilhelms," Calkins said -- "because her testimony agrees with Mr. Huff's -- that Mr. Huff did not consume enough alcohol that day to be under the influence."

"Mr. Huff admits he was driving too fast," Calkins said. "The brakes locked and the car was out of control. You heard the accident reconstructionist testify that at that point Huff 'was just along for the ride, that he had no control of the vehicle'."

"Mr. Huff testified that he tried taking evasive actions. He failed. He had no options," Calkins said.

Calkins said that Huff denies telling Markwartt that he had to take the fall for the accident. He testified, Calkins said, that Huff stayed with the little girl and stayed with his vehicle.

Calkins said that Huff testified that he approached Sgt. Deputy Lee Lozo and said, "I was driving." "Mr. Huff took responsibility for driving," Calkins said.

"Mr. Huff never denied having something to drink," Calkins said. "But the question is, was he under the influence."

Calkins said that the collision with the car was the cause of Kasey Jo's death, a fact corroborated by the autopsy, he said. Brian Buxbaum, the accident reconstructionist, said Huff was driving too fast, Calkins said.

Dr. Nipper "was hired to clean up the mess," Calkins said, and had to rely on testimony to form his opinions on impairment and his calculations of Huff's blood alcohol concentration. "The one flaw is," Calkins said, "he had to rely on the testimony of Ryan Markwartt."

Calkins told jurors that if they could not find Huff guilty of motor vehicle homicide "beyond a reasonable doubt," they had to look at manslaughter while engaging in an illegal act, that of speeding. "In testimony by Mr. Buxbaum, Mr. Huff was driving too fast. Was speeding the approximate cause of Kasey Warner's death? If not, find Mr. Huff not guilty."

Guinan rebutted, "This is not a speed case. It is a DWI case, and because of his drunkenness, Mr. Huff killed Kasey Jo Warner. He cannot duck his drunkenness."

Guinan told jurors that he "didn't mention" Dianna Wilhelms in his closing statement, "because she was pretty confused. Her facts don't fit" with testimony presented. And who was the man that she remembers who ordered "just one soda pop" and why wouldn't she remember "distinguishing marks" about Ryan Markwartt, he asked. "Do you remember Ryan Markwartt's tattoo? That big star on his neck?," Guinan asked. "She mixing up her memories, possibly of more than one day."

Why interview a bartender, Guinan asked. "Someone who serves to excess doesn't have a good memory," he said.

And as far as "losing control of the vehicle," Guinan said, "Mr. Buxbaum testified that "where the two skid marks break into four" is where someone loses control of a skidding car, where the driver's "just along for the ride." At or near the point of impact with Kasey Jo's body, "Mr. Huff hadn't lost control. He didn't react properly," Guinan said.

"This is not a speeding case," Guinan reiterated. "This is a DWI case."


Huff showed no emotion as the verdict of "guilty" was read, although, as his attorneys and the attorneys for the prosecution approached the judge's bench, for just several seconds, a smile, a smirk, curled up his right cheek.