Herchel Huff

By JEAN ORTIZ

Associated Press Writer

OMAHA, Neb. (AP) -- A Nebraska man who pleaded guilty to manslaughter in a 2007 death is asking the Nebraska Supreme Court to stop prosecutors from also trying to convict him on a motor vehicle homicide charge.

Attorneys for Herchel Huff say convicting him on both charges amounts to double jeopardy. They want the high court to overturn a Furnas County District Court ruling that allowed the latter charge to stand.

"Huff is not cherry picking misdemeanors to bar felonies," his attorneys argue in court briefs. "Huff was given the choice by the prosecution between motor vehicle homicide, which may be a felony and involuntary manslaughter, which is a felony. Huff chose involuntary manslaughter, pled guilty and was convicted by the district court."

But an attorney for the state argues that the offenses are different and the double-jeopardy claim isn't valid.

The high court will hear arguments next Friday.

The charges stem from the 2007 death of Kacey Jo Warner of Arapahoe. Authorities said Warner was walking alongside her 3-year-old daughter when Huff, who was allegedly driving drunk, hit the pair with his car. Warner's daughter survived.

Besides the manslaughter and motor vehicle homicide counts, Huff also was charged with witness tampering and refusing to take a blood-alcohol test. Huff, 36, pleaded not guilty to all but the manslaughter charge.

He also had been charged with fifth offense drunken driving, although the charge was reduced and later dismissed, according to court records.

His attorney argued that because Huff pleaded guilty to manslaughter, the motor vehicle homicide charge should be dismissed.

District Judge James Doyle rejected that argument. Huff's appeal followed.

Huff's attorneys argue that Nebraska law defines both crimes as the unintentional killing of another while doing something illegal. In the case of motor vehicle homicide, it additionally involves the use of a vehicle.

That means every motor vehicle homicide is simultaneously manslaughter, making them the same offense, Huff's attorneys argue.

"Fortunately, the constitutional protection against double jeopardy requires more than creative writing and the prosecution is not free to further prosecute someone for the same crime by inserting more descriptive adjectives," Holdrege attorney Charles Brewster wrote in court briefs.

But the state argues the difference is clear. Someone commits motor vehicle homicide when driving drunk and causing an unintentional death, according to briefs filed by Assistant Attorney General Erin Tangeman. Manslaughter, meanwhile, requires that a person causes an unintentional death while driving carelessly.

Huff is attempting to bar prosecution of a more serious felony by pleading guilty to a lesser charge, Tangeman argues.

Manslaughter is punishable by up to 20 years in prison, a $25,000 fine or both, upon conviction. Motor vehicle homicide carries a maximum 50-year prison sentence.

"While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the clause does not prohibit the state from prosecuting a defendant for multiple offenses in a single prosecution," Tangeman wrote.

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